Although there is no right to an appeal from a special master award to a jury on nonvalue issues, an appeal to the superior court is provided if exceptions have been timely filed. Leach v. Ga. Power Co., 228 Ga. 16 (4) ( 183 S.E.2d 755); Wiggins v. City of Macon, 120 Ga. App. 197 (1) ( 169 S.E.2d 667). The condemnee has made no argument in his brief or at oral argument pointing out how his constitutional right to equal protection has been violated.
The appeal of any nonvalue issue is governed by OCGA ยง 22-2-103. See Leach v. Ga. Power Co., 228 Ga. 16, 21 (4) ( 183 SE2d 755) (1971). This Code section requires a party to file written exceptions within ten days after the filing of a special master's award in the superior court in which the award was filed.
In order to obtain review of the non-value issues determined by the special master, a party must file exceptions with the superior court prior to that court's entry of judgment on the special master's award. Shoemaker v. Dept. of Transp., 240 Ga. 573 (3) ( 241 S.E.2d 820) (1978); Sweat v. Ga. Power Co., 235 Ga. 281 (1) ( 219 S.E.2d 384) (1975); City of Atlanta v. Turner Advertising, 234 Ga. 1 ( 214 S.E.2d 501) (1975); Leach v. Ga. Power Co., 228 Ga. 16 (4) ( 183 S.E.2d 755) (1971); Wiggins v. City of Macon, 120 Ga. App. 197 (1), (4) ( 169 S.E.2d 667) (1969). Before it enters judgment on the special master's award, the superior court must allow the parties ten days from the entry of the award within which to file exceptions to the non-value issues.
In instances in which the state has delegated its power of eminent domain under what the parties refer to as the "public-purpose rationale," it has been held repeatedly that the necessity for the taking is a matter addressing itself to the discretion of the condemnor, subject to a showing that the condemnor has acted in bad faith or beyond the scope of its conferred powers. E.g., Concept Capital Corp. v. Dekalb County, 255 Ga. 452 (2) ( 339 S.E.2d 583) (1986); Sweat v. Ga. Power Co., 235 Ga. 281 (3) ( 219 S.E.2d 384) (1975); Leach v. Ga. Power Co., 228 Ga. 16 (7) ( 183 S.E.2d 755) (1971). In the Venable case, the plaintiff was a partnership engaged in the operation of a granite quarry, which had been leased from the owners for a period of five years.
The department-condemnor contends that the declaration is a pleading which is governed by the CPA and that under Code Ann. ยง 95A-614 the trial court was empowered to order the filing and relation back of an amendment under ยง 81A-115 (c). The department also relies on our decision in Leach v. Ga. Power Co., 228 Ga. 16 ( 183 S.E.2d 755) (1971), wherein we held that a petition for condemnation under the Special Master Act, Code Ann. ยง 36-6A could be amended by the condemnor to make a more specific description of the right of way to be condemned. The decision in Leach is not based upon an application of the Civil Practice Act, but relies on B. W. Hen Farm v. Ga. Power Co., 222 Ga. 830 ( 152 S.E.2d 841) (1966).
Zuber's fourth contention is that the taking of a portion of the subject property was not "necessary" for the project for which the property was being condemned. In Leach v. Georgia Power Co., 228 Ga. 16 ( 183 S.E.2d 755) (1971) this court said: "Section 3 of the Special Master Act (Code Ann. ยง 36-603a) provides that the condemning body is the exclusive judge as to the necessities of the public needs. A large discretion is vested in a party having the right to condemn, in the selection of particular property to be condemned.
As was said by the Court of Appeals in Wiggins v. City of Macon, 120 Ga. App. 197, 199 ( 169 S.E.2d 667) with reference to questions other than value: "The statute obviously contemplates that, as with auditors, a special master's rulings and findings may be excepted to in the trial court and disposed of ... before any award, which is the end product of the proceeding, is offered to the court and a judgment of taking is entered up based on the award." See also Leach v. Ga. Power Co., 228 Ga. 16 ( 183 S.E.2d 755). It was error for the trial court to enter a final judgment of condemnation in this case without passing upon the timely filed exceptions to the award of the special master.
In addition to the above stated duties the special master has the authority "to hear and determine any legal objections raised by the parties." Leach v. Georgia Power Co., 228 Ga. 16 (4) ( 183 S.E.2d 755). Every objection raised by appellant in his equitable petition filed June 5, 1974, could and should have been raised at the proceeding before the special master. Appellant, accompanied by counsel, participated in the condemnation proceeding and raised none of his subsequent objections.
Although the court purported to condemn the property for the county in absolute and fee simple title, the judgment did not as a matter of law condemn more than the easement and right of way the condemnor sought. Leach v. Ga. Power Co., 228 Ga. 16, 22 (6) ( 183 S.E.2d 755) (1971). Condemnee Simmons appealed to the superior court from that award pursuant to OCGA ยง 22-2-112 and also filed exceptions to the special master's findings, rulings, and award.
Fulton County commenced this condemnation action by filing a complaint in rem in July 1976. Condemnees Threat and Ace Sand Company filed an answer; a special master was appointed who ultimately entered an award in favor, inter alia, of condemnees in the amount of $5,285.23; the superior court entered an order confirming this award and vesting title to the easements in Fulton County in August 1976. The record reflects that condemnees filed no exceptions to the award. See generally Leach v. Ga. Power Co., 228 Ga. 16, 21-22 ( 183 S.E.2d 755). On August 10, 1976, condemnee Threatt filed a timely notice of appeal. However, on August 23, 1976, Threatt voluntarily applied for and thereafter obtained the $5,285.23 award, which had been paid into the registry of the court.