Opinion
41949.
ARGUED APRIL 4, 1966.
DECIDED APRIL 25, 1966. REHEARING DENIED MAY 10, 1966.
Condemnation of land. Whitfield Superior Court. Before Judge Pope.
Mitchell Mitchell, Erwin Mitchell, Warren N. Coppedge, Jr., for appellants.
Arthur K. Bolton, Attorney General, Richard L. Chambers, E. J. Summerour, Assistant Attorneys General, William A. Ingram, Deputy Assistant Attorney General, John T. Minor, III, for appellee.
1. (a) That a designation of the proposed road as a State-aid road was not made until after the filing of a declaration of taking is not ground for the setting aside or annulling of the declaration.
(b) Where land has been dedicated for use as a road, the Highway Department may, without condemning it and acquiring title, proceed to improve it and continue its use as a road.
(c) If the lands described in the declaration of taking do not include all lands of the condemnee that are taken for use in the construction of a road, he has a remedy by injunction, or he may sue under the Constitution to obtain payment therefor.
ARGUED APRIL 4, 1966 — DECIDED APRIL 25, 1966 — REHEARING DENIED MAY 10, 1966 — CERT. APPLIED FOR.
The State Highway Department filed in Whitfield Superior Court petitions for the condemnation of certain lands of fourteen owners along West Walnut Avenue and Dug Gap Road in Dalton for the purpose of acquiring a right of way for the establishment and construction of a State-aid road. The proceedings were brought under the procedure authorized by Ga. L. 1961, p. 517 et seq. ( Code Ann. § 36-1303 et seq.) by filing in the court a declaration of taking and a deposit of the estimated compensation to be paid. Thereafter the owners each filed a petition to set aside and annual the declaration of taking upon the grounds (1) that the land sought to be condemned was not for State-aid road purposes and not to be so used, and (2) the condemnor, though about to take illegally and without any payment therefor, was not seeking to condemn portions of land to which the condemnees held and claimed title. In elaboration of the second ground it was contended that neither the State, the county nor the city held any title to the lands then being used as West Walnut Avenue and Dug Gap Road and that, as adjoining owners, condemnees owned to the middle of the street or road, and that the Highway Department was proceeding on the claim that the right of way for street and road was 50 feet in width along Walnut Avenue and 30 feet along Dug Gap Road, whereas the street and road in use was of less width and the right of way now sought was to be 84 feet wide, with additional construction easements in designated places. The owners contended that there were portions of land between the street in use and the right of way of the street as contended by the Highway Department which it was taking, though not condemning, along with the street and road which was being taken, but not condemned. A rule nisi was granted requiring the Highway Department to show cause why the declaration of taking should not be set aside and annulled, and the matter came on to be heard on December 1, 1965.
It was developed at the hearing that Whitfield County had entered into a contract with the Highway Department in July, 1965, for the acquisition of the right of way, superseding another which had been entered into in March, 1965. The road to be constructed on the right of way to be acquired had not, prior to November 1, 1965, been designated as a State-aid Road, and the project was referred to in correspondence and contracts as Project No. F-116-1 (1). The Highway Director testified that this indicated that it was a federal aid project, but also testified that the financing of a road is not, per se, determinative of whether it is a federal or State-aid road, for in either, both governments often, perhaps generally, participate in the financing of acquisition and construction. There was testimony from the city and county officials that they had not been notified, prior to the filing of the condemnation proceedings, that the State would take this proposed road into the system of State-aid roads. See Code Ann. §§ 95-1705, 95-1742 (Ga. L. 1961, pp. 469, 471). But it did appear that on September 24, 1965, the Director entered an order setting out the use to be made of the road and entered an order on November 1, 1965, by which the proposed road was made a State-aid project, and county and city authorities were notified. Condemnees contend that this was too late and that no designation after the time of taking could be effective.
After a consideration of the pleadings and the evidence, the court entered an order on December 13, 1965, denying the petition to set aside and annual the declarations of taking, holding that the matter of whether just and adequate compensation was being paid for the property taken was not properly before the court on this petition. From that order condemnees appeal.
1. The Act providing for the "quick taking" of land for road purposes under a declaration of taking provides ( Code Ann. § 36-1303) that the condemnee may petition the superior court to vacate, set aside and annual the declaration for: (a) fraud or bad faith, as contemplated under Code § 37-709, (b) improper use of the powers provided under the Act, (c) abuse or misuse of the powers, or such other questions as may be raised under Code § 36-1308, i.e., questions of law arising upon the pleadings after the filing of the declaration of taking.
The determination as to necessity for the condemnation and the use to be made of it in the road system is conclusive when made by the Highway Director. Code Ann. § 36-1303 (6).
The question for determination here is whether the failure of the Director to designate the road as a State-aid road prior to the filing of the declaration of taking renders the condemnation proceeding void, and thus whether it should be set aside and annulled. We conclude that it does not.
While it would have been better practice to give the statutory notice to the city and county officials and enter a formal designation of the road as a State-aid road before filing the condemnation proceedings, we do not believe that failure to do this was fatal.
As to the matter of notice, it appears that the county had entered into a contract with the State Highway Department for acquisition of the right of way as early as March 1965, and another superseding that one in July. In our judgment, this contract, while perhaps not in the form contemplated for giving notice as provided in the statute, effectually notified and informed the county officials of the intentions of the Highway Department. But nothing in the Act or in Code § 95-1705, which requires the giving of the notice to the county officials, or in Code Ann. § 95-1742, requires notice to the city officials prior to the filing of condemnation proceedings for acquisition of the right of way. In § 95-1705 it is asserted that no road shall become a part of the State-aid system until it has been so designated and written notice to the county authorities given. Section 95-1742 provides, as to cities, that "upon designating any portion of streets or highways within the corporate limits . . . as part of the State-aid system of roads, the State Highway Board shall so notify the highest elective official of the municipality concerned." Thus it is observed that there is no requirement of notice at or prior to the filing of the condemnation proceedings — only upon designation of the street or road as a State-aid road.
When must the designation be made? As we have observed, it would be better if it were made as soon as the Highway Department determines that the improvement is to be made. Promptness in all matters is a good rule and eliminates many problems that would not arise but for delay. But the statute under which the proceeding here was filed provides in Code Ann. § 36-1303 (6) that: "The phrase, `State-aid public road purposes,' as used herein, is defined and is to be construed as any public highway of the State established and constructed, or to be constructed, under the provisions of Chapter 95-17 of the Code of Georgia of 1933, under the provisions of Code § 95-1610 (Ga. Laws 1951, pp. 31 through 36), and including `Limited-access highways,' as provided for by Chapter 95-17A of the Code (Ga. Laws 1955, p. 559, et seq.)." (Emphasis supplied). This definition or provision in the Act authorizes the acquisition of the right of way for a road to be constructed, and since there is no requirement that the designation of a State-aid road be made before it is to be placed in use, we think the designation made by the orders of September 24 and November 1 are sufficient to accomplish it. The matter of whether a road is to be a State-aid road is of little or no consequence to the condemnee. He is entitled to just and adequate compensation, no matter what kind of road it is to be, and no more. But it is of concern to the city or county, for it means that the State will contribute funds for acquisition and construction and will be obligated for the maintenance of the road, thus relieving them of heavy burdens. This matter is not an issue between the condemnor and the condemnee unless it is determinative of whether the Highway Department is illegally proceeding. Under the circumstances here we do not think it is.
On the matter of whether the State must condemn the existing right of way and pay the abutting owners for it, or whether the width of the right of way is as contended by the condemnor or the condemnee, we agree with the trial judge that these issues are not raised by the petition to set aside and annual.
If the contentions of the condemnees are well taken in these respects the Highway Department will certainly acquire title to no more land than it seeks to condemn by these petitions, and if there is a taking of condemnee's lands not included in the declaration of taking, they have an appropriate remedy by injunction or by an action at law for the value of the lands taken but not condemned under the provisions of the Constitution, Code Ann. § 2-301, as to lands over which the Highway Department acquires no easement for road purposes under the city and county, i.e., the portions which have not been dedicated for that purpose. The Highway Department is not obliged to acquire by condemnation any lands which have been dedicated to that use; it may make any improvement thereon and continue the use for road purposes.
Judgments affirmed. Bell, P. J., and Jordan, J., concur.