Opinion
20826.
ARGUED MARCH 15, 1960.
DECIDED APRIL 7, 1960.
Injunction. Muscogee Superior Court. Before Judge Thompson. December 12, 1959.
J. Willard Register, William S. Cain, for plaintiff in error.
Charles M. Evert, Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, James H. Fort, contra.
1. The constitutional prerequisite that just and adequate compensation shall first be paid before private property is taken for public use is not violated by section 13 (Code, Ann., § 36-613a) of the act of the General Assembly approved March 13. 1957 (Ga. L. 1957, p. 387 et seq.; Code, Ann., §§ 36-601a — 36-616a), which provides that the judge of the superior court shall enter judgment condemning the described property sought to be condemned, in rem, and fee simple, to the use of the condemning body upon the payment into the registry of the court of the amount provided for in the award of the special master. The method of determining what is just and adequate compensation is a matter of legislative discretion, and the method prescribed in section 13 fully and adequately protects the constitutional right of the owner to be first paid just and adequate compensation before his property is taken.
2. Since, by virtue of Code (Ann.) § 36-613a, the taking is complete when the judge of the superior court enters judgment making the award deposited in the registry of the court by the special master the judgment of the court, and since the issue to be determined upon appeal to a jury is the value of the property at the time of the taking, improvements located on the condemned property may be removed pending the jury trial.
ARGUED MARCH 15, 1960 — DECIDED APRIL 7, 1960.
The exception is to the judgment of the Superior Court of Muscogee County denying the injunctive relief prayed for and dismissing the petition. The sole relief sought by the petition is to enjoin the defendant, State Highway Department, from removing described improvements from land which the plaintiff alleges the defendant is seeking to condemn under authority of the act of the General Assembly, approved March 13, 1957 (Ga. L. 1957, p. 387 et seq.; Code, Ann., §§ 36-601a — 36-616a), until a final determination and award have been made in the pending condemnation proceedings, and until the plaintiff has been paid just and adequate compensation. He contends that, although he is permitted an appeal from the award made by the master, to permit removal of the buildings from his land prior to the trial of his case on appeal, will prevent his establishing the value of his property on the jury trial. The petition as amended alleges that section 13 of the 1957 act, supra, denies the plaintiff the right to be first paid just and adequate compensation before the taking of his property, in violation of art. 1, sec. 3, par. 1, of the Constitution of Georgia (Code § 2-301).
The trial court in its order denying the relief and dismissing the petition made the following findings of fact: that, at the interlocutory hearing on December 5, 1959, it was established that the special master had made an award on December 3, 1959, in the amount of $50,000 to be paid to several persons (one of whom was the plaintiff); that the return of the special master had been filed with the court; that, on December 4, 1959, the $50,000 awarded by the special master had been paid into the registry of the court; and that, prior to the interlocutory hearing, the return of the special master had been made the judgment of the court.
1. Section 13 of the 1957 act (Ga. L. 1957, p. 396; Code, Ann., § 36-613a), is not unconstitutional for any reason assigned. This section provides that, "Upon the award of the special master being entered up as hereinbefore provided . . . the judge of the superior court shall enter up a proper order and judgment of the court condemning the described property, or the easement or other interest therein sought to be condemned, in rem, and fee simple, to the use of the condemning body upon the payment into the registry of the court of the amount provided for in the award of the special master."
The plaintiff does not attack the prior sections of this act which provide for the appointment of a special master, who shall, after notice and hearing of evidence, make an award fixing the value of the property taken, which award, upon being paid into the registry of the court, shall condemn and vest title to the property or easement of the property sought to be condemned in the condemnor. His complaint as to section 13 is that the status quo as of the time the trial court enters its judgment, as therein provided, is not preserved while the case is on appeal, but that the condemnor is vested with fee-simple title and full use of and dominion over the property and can remove improvements, thereby preventing the jury on the trial of the case on appeal from adequately determining what is just and adequate compensation for the property taken.
"The method of ascertaining what is just and adequate compensation, is subject, within certain limits, to legislative discretion. To such proceedings in the exercise of the power of eminent domain the constitutional guaranty of trial by jury does not extend, there being in our Constitution no express provision so extending it." Oliver v. Union Point W. p. R. Co., 83 Ga. 257, 261 (2) ( 9 S.E. 1086). "It is well settled that unless the right of appeal is guaranteed by the Constitution, the legislature may grant or withhold it, or impose such conditions as it shall see fit. 2 Lewis, Em. Dom. § 537, p. 1197; Cooley's Const. Lim. (5th ed.) 697; Proffatt, Jur. Tr. § 104; Rand. Em. Dom. § 316; Mills, Em. Dom. § 91; and the numerous cases cited by these authors. In the absence of constitutional provisions on the subject, there can be no appeal unless granted by statute. Lewis, Em. Dom. § 535, p. 1191, and cases cited. Unless there are express constitutional provisions upon the subject, the authorities almost uniformly hold that it is not a constitutional right to have the compensation to be paid for property condemned and taken for public use ascertained by a common-law jury. 2 Lew. Em. Dom. § 311, and the great number of cases cited in note 26." Savannah, F. W. Ry. Co. v. Postal Tel.-Cable Co., 112 Ga. 941, 943 ( 38 S.E. 353). See also Metropolitan Casualty Ins. Co. of New York v. Huhn, 165 Ga. 667, 672 ( 142 S.E. 121, 59 A.L.R. 719).
The Constitution requires that just and adequate compensation first be paid before the property is taken. The method of determining what is just and adequate compensation is not fixed by the Constitution and, accordingly, is subject to legislative discretion. Deposit of the compensation assessed by the special master into the registry of the court, as provided by this statute, satisfies the constitutional requirement; and the legislature could have made this final. However, it allowed an appeal on the issue sue of value of the property taken and provided for the trial of that issue by a jury. We cannot say that the legislature abused its discretion in providing that, upon payment into the registry of the court of the amount awarded by the special master, the judge of the superior court shall enter judgment vesting fee-simple title in the condemnor and that the condemnor may thereupon proceed with the work. O. K., Inc. v. State Highway Dept., 213 Ga. 666 ( 100 S.E.2d 906).
2. The value of the property at the time of the taking is the issue to be determined upon the trial of the case on appeal before a jury. The taking here was complete when the judge of the superior court, acting under section 13, supra, entered judgment condemning the property and vesting fee-simple title in the condemnor. Accordingly, on the trial of the case on appeal before a jury, the issue is not the value of the property at that time, but at the time the property was condemned and title vested in the condemnor under the judgment of the trial court. There is no merit in the plaintiff's contention that the improvements should not be removed from the property until the case is tried before a jury.
The trial judge properly denied the injunctive relief asked and dismissed the petition.
Judgment affirmed. All the Justices concur.