Opinion
45791, 45792.
ARGUED JANUARY 11, 1971.
DECIDED APRIL 8, 1971. REHEARING DENIED APRIL 28, 1971.
Condemnation of land. DeKalb Superior Court. Before Judge Dean.
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, for appellant.
King Spalding, Charles M. Kidd, Jack H. Watson, Jr., for appellee.
While all relevant legal and equitable issues may be raised in an appeal from the assessors' award in a condemnation proceeding, the sole issue for the jury is value. All other issues, including the necessary fact finding, are for the determination of the court.
ARGUED JANUARY 11, 1971 — DECIDED APRIL 8, 1971 — REHEARING DENIED APRIL 28, 1971 — CERT. APPLIED FOR.
In a proceeding under Code Ch. 36-11 to condemn land for road purposes, the condemnor appeals from the denial of its motion for summary judgment and one of the condemnees appeals from the denial of its motion to strike an amendment.
Chapter 36-11 provides for condemnation in situations where some or all of the interests in the land may be unknown. The county filed its petition, naming the owner of the fee and an apparent leaseholder. No other interest appeared at the initial hearing. Assessors were chosen and, after a hearing, they filed an award with the court giving the fee and the leasehold separate valuations. The court issued an order vesting title to the land in the county upon its payment of the total of the valuations into the registry of the court. The county paid and filed an appeal from the award to a trial by jury as to the leasehold interest. The lessee made a similar appeal. After some initial discovery, the county filed an amendment to its original petition which alleged, in effect, that the lessee-condemnee did not have an interest in the whole of the land at issue because a predecessor lessee had dedicated most of it to public use by way of a plat drawn for an application for a building permit to the City of Chamblee.
The lessee made a motion to strike the amendment, contending that the county was bound by res judicata and estopped to claim the lessee had no interest after it had taken title, by judgment of the court, to the land and interests described in its own petition; that a leaseholder cannot dedicate land, or even if it could dedicate, there was no dedication here; and that the issue could not be considered since, as a matter of law, the sole issue on an appeal from an award of assessors is the value of property taken.
The county made a motion for summary judgment that all of the land condemned in the proceeding was dedicated as to the leasehold interest (with the exception of a very small triangular piece). Affidavits, maps, plats and answers to interrogatories were submitted. The court denied both motions (thereby making the dedication a jury question) and certified them for immediate review.
The power of eminent domain is statutory, and the whole of Title 36 legislatively asserts, delegates and delimits this power. Many of the chapters are supplementary and cumulative, as is Chapter 36-11, the one under which the power was invoked in this case. Code Ann. § 36-1115. Many court decisions are also applicable to several chapters. This can lead to apparent contradictions. Here we have the condemnee contending that the question of dedication cannot be considered because the only issue on an appeal from an award is the value of the property taken. This is supported by the language of Code Ann. § 36-601 and many appellate decisions. Atlantic B. R. Co. v. Penny, 119 Ga. 479 ( 46 S.E. 665); Atlantic C. L. R. Co. v. Postal Telegraph-Cable Co., 120 Ga. 268 ( 48 S.E. 15, i AC 734); Piedmont Cotton Mills v. Ga. R. c. Co., 131 Ga. 129 ( 62 S.E. 52); Atlantic Terra Cotta Co. v. Ga. R. Co., 132 Ga. 537 ( 64 S.E. 563); Harrold v. Central of Ga. R. Co., 144 Ga. 199 ( 86 S.E. 552).
On the other hand, the condemnor asserts that the cases construing the very same section hold that such an appeal is a de novo investigation and the trial is governed by the same rules as ordinary suits. Therefore, the issue of what is taken can be raised by amendment for the first time. Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (3) ( 76 S.E. 387, AC 1914A 880); Ga. Power Co. v. Lightfoot, 97 Ga. App. 330 (1) ( 103 S.E.2d 99); Western Union Tel. Co. v. Western A. R. Co., 142 Ga. 532 ( 83 S.E. 135).
Both are correct to some extent. Chapter 36-6 concerns appeals from several different forms of condemnation proceedings below and is necessarily general in its language. However, most of the cases cited by the condemnor are inapposite since they were decided before the enactment of Chapter 36-11 when issues other than value had to be raised by a separate bill in equity. See Mitchell v. State Hwy. Dept., 216 Ga. 517 ( 118 S.E.2d 88) for a full discussion of this subject. Under the rationale of Mitchell, we believe all legal and equitable issues relevant to the condemnation of a piece of land may be raised in the single Chapter 36-11 proceeding, unless principles of waiver or estoppel apply. See Adams v. Housing Authority of the City of Atlanta, 117 Ga. App. 646 ( 161 S.E.2d 444). In view of our liberal practice rules regarding amendment and the wide discretion allowed the trial court, we cannot say the court abused that discretion in denying the motion to strike the condemnor's amendment. State Hwy. Dept. v. Hester, 112 Ga. App. 51 ( 143 S.E.2d 658).
This does not mean, however, that all relevant issues are jury issues. Sections 36-1111 through 36-1113, as interpreted by appellate decisions, confer very broad powers on the trial court judge to identify interests, to mould the award, to dispose of the fund, to cause the issues to be made up, to determine all questions of law, however they may arise, that are necessary to speed the cause and do justice. See Alexander v. Rozetta, 110 Ga. App. 660 ( 139 S.E.2d 451); State Hwy. Dept. v. Taylor, 216 Ga. 90 ( 115 S.E.2d 188); Kreutz v. Housing Authority of Dublin, 107 Ga. App. 315 ( 130 S.E.2d 134).
The broad sweep of these powers clearly indicates an intent that the ordinary common law distinction between judge and jury as to law and fact finding powers be modified in condemnation proceedings, which are special proceedings, not limited to the usages of the common law, and which are ordinarily summary in nature. 6 Nichols, Eminent Domain, §§ 24.1 (1) and 26.21.
Therefore, we believe the proper interpretation is that while all issues may be raised in an appeal from the assessors' award, the question of value is the sole issue to be submitted to the jury, and its fact-finding powers are limited to those facts directly touching on value. The question of what is to be taken, when in doubt, is a mixed question of law and fact, and unlike the typical civil action, the trial court has the power and duty to make the findings of fact necessary to determine the question of law in order "to speed the cause," i. e., get the issue of value before the jury as soon as possible. The alternative would be to hold up necessary public works for years.
While a proceeding under a special master (Chapter 36-6A) has some unique characteristics, we can surely say that the fact and law finding powers granted the special master are not any greater than those of the court to which he reports. By analogy then, the case of Johnson v. Fulton County, 103 Ga. App. 873 ( 121 S.E.2d 54) is pertinent. There, this court held that all issues may be adjudicated by the master and are conclusive as to the ownership of the interests; and that the only issue which can be submitted to the jury is the question of value. This does not mean, as the condemnee here contends, that the assessors in a Chapter 36-11 proceeding have this power, however, the judge of the superior court before whom the proceeding is brought does.
Whether the lessee-condemnee dedicated a large portion of the land is a mixed question concerning the nature and amount of the land in issue. Its determination is for the trial judge. In this case he had before him the facts necessary for a determination.
The only evidence relied upon by the county to prove the condemnee's intent to dedicate the land was a drawing which a predecessor lessee had submitted to the City of Chamblee with an application for a building permit. The drawing allowed margins for possible road widening along the edges of the property and the building was sited in reference to them. This can in no way be considered an express dedication, nor is it sufficient to show an implied intent where, as here, the land was continually used in the condemnee's business until the taking. Where there is no express dedication and the requisite intent must be implied, "the acts relied upon to establish such dedication must be such as clearly showed a purpose on the part of the owner to abandon his own personal dominion over such property, and to devote the same to a definite public use." Swift v. Mayor c. of Lithonia, 101 Ga. 706 (1) ( 29 S.E. 12); City of Savannah v. Standard Fuel Supply Co., 140 Ga. 353 ( 78 S.E. 906, 48 LRA (NS) 469); City of Atlanta v. Ga. R. Bkg. Co., 148 Ga. 635 ( 98 S.E. 83); Tift v. Golden Hardware Co., 204 Ga. 654 ( 51 S.E.2d 435). There is no precedent for the manner in which the trial judge should proceed to rule on this issue. In our opinion, it could be in the nature of a pre-trial order. The ruling under review is of a limited nature — the denial of the condemnor's motion for summary judgment. In view of what has been said above the trial judge's ruling was not error.
Judgment affirmed. Eberhardt, J., concurs. Whitman, J., concurs in the judgment.