Department of Transportation v. Mixon ( 2021 )

In the Supreme Court of Georgia
Decided: October 5, 2021
S20G1410. DEPARTMENT OF TRANSPORTATION v. MIXON.
PETERSON, Justice.
The Georgia Constitution provides that, as a general matter,
“private property shall not be taken or damaged for public purposes
without just and adequate compensation being first paid.” Ga.
Const. of 1983, Art. I, Sec. III, Par. I (a) (the “Just Compensation
Provision”). This Court has long held that this Provision waives
sovereign immunity for inverse condemnation claims seeking
monetary compensation.1 In this case, the Court of Appeals relied on
that precedent to conclude that the Provision also waives sovereign
1 By “inverse condemnation,” we mean an action brought by a private
landowner under the Just Compensation Provision alleging the taking or
damaging of the private property for public purposes without the initiation of
eminent domain proceedings. See Woodside v. Fulton County, 223 Ga. 316, 319-
320 (1) (a) (155 SE2d 404) (1967), overruled on other grounds by Powell v.
Ledbetter Bros., 251 Ga. 649, 652 (307 SE2d 663) (1983).
immunity for inverse condemnation claims seeking injunctive relief.
See Dept. of Transp. v. Mixon, 355 Ga. App. 463, 465 (1), 467 (3) (844
SE2d 524) (2020). We granted certiorari, and we conclude that the
Just Compensation Provision waives sovereign immunity for claims
seeking injunctive relief in two circumstances: (1) where the Just
Compensation Provision’s requirement of prepayment before a
taking or damaging applies and has not yet been met; or (2) where
the authority effecting a taking or damaging has not invoked the
power of eminent domain. This waiver under the Just Compensation
Provision, however, allows an injunction only to stop the taking or
damaging until such time as the authority fulfills its legal
obligations that are conditions precedent to eminent domain.
Because Mixon’s claim for injunctive relief — at least in this
procedural posture — falls into at least one of the two categories of
situations in which the Just Compensation Provision acts as a
waiver of sovereign immunity for injunctive relief, we affirm.
1. Background
Cathy Mixon sued the Georgia Department of Transportation
2
(“GDOT,” or “the State”), bringing claims of nuisance and inverse
condemnation based on alleged flooding on her property following a
road-widening project. Mixon claims that GDOT’s failure to
maintain its storm water drainage systems has resulted in regular
flooding, drainage, and erosion problems “within and around” her
property. Her complaint seeks “just and adequate compensation” for
the alleged taking, other money damages, attorney fees, and a
permanent injunction “to prevent future nuisance and continual
trespass[.]” GDOT filed a motion to dismiss, which the trial court
granted in part and denied in part. In particular, the trial court
dismissed any claims arising from professional negligence (due to
the lack of an expert affidavit, as required by OCGA § 9-11-9.1) and
any claims arising more than four years prior to the filing of the
complaint (due to the applicable statute of limitations). The trial
court otherwise denied GDOT’s motion. Among other things, the
trial court rejected GDOT’s argument that sovereign immunity
barred Mixon’s claims.
The Court of Appeals granted GDOT’s application for
3
interlocutory appeal and then affirmed, holding in relevant part that
the trial court did not err in ruling that sovereign immunity is
waived for Mixon’s claims for damages and injunctive relief. See
Mixon, 355 Ga. App. at 465 (1), 467 (3). As to Mixon’s inverse
condemnation claim for damages, the Court of Appeals properly
applied Georgia appellate precedent holding that the Just
Compensation Provision waives sovereign immunity for damages
claims premised on a taking or damaging of private property. See id.
at 465 (1) (citing Ga. Dept. of Nat. Res. v. Center for a Sustainable
Coast, 294 Ga. 593, 600 (2) (755 SE2d 184) (2014), and Bray v. Dept.
of Transp., 324 Ga. App. 315, 317 (2) (750 SE2d 391) (2013)). GDOT
also argued that sovereign immunity barred Mixon’s claim for
injunctive relief. But the Court of Appeals rejected that argument
by merely referring back to its analysis as to whether Mixon’s
damages claim was barred by sovereign immunity:
As we discussed in greater detail in Division 1, sovereign
immunity does not apply to Mixon’s claim for inverse
condemnation arising out of a nuisance. Accordingly, the
trial court did not err in refusing to apply the doctrine of
sovereign immunity to dismiss Mixon’s claim for
4
injunctive relief.
Mixon, 355 Ga. App. at 467 (3).
We granted GDOT’s petition for a writ of certiorari to address
whether sovereign immunity had been waived for Mixon’s claim for
injunctive relief. We affirm, although with different reasoning and a
narrower holding.
2. Analysis
This case involves the interaction between two longstanding
principles of Georgia law. The first principle, known as sovereign
immunity, provides that the State cannot be subjected to any legal
action without its express consent. See Ga. Const. of 1983, Art. I,
Sec. II, Par. IX (e). The second principle, embodied in the Just
Compensation Provision, provides that although the government
may take or damage private property for public use, it must pay the
property owner “just and adequate compensation,” and that
payment generally must precede the taking or damaging unless an
exception applies. Ga. Const. of 1983, Art. I, Sec. III, Par. I (a).
We thus review the standard for waiver of sovereign immunity
5
and our prior treatment of the Just Compensation Provision,
particularly with respect to the extent to which that Provision acts
as a waiver of sovereign immunity. We conclude that the Just
Compensation Provision waives sovereign immunity for some claims
of injunctive relief. We also recognize that textual changes to the
Just Compensation Provision — with which this Court has not
grappled previously — may limit the scope of that waiver for claims
for injunctive relief, but not in a way that affects this case in its
current posture.
(a) A constitutional provision may waive sovereign immunity
by necessary implication, not merely by explicit language.
Article I, Section II, Paragraph IX of the Georgia Constitution
states that, except as otherwise provided in that paragraph,
“sovereign immunity extends to the state and all of its departments
and agencies” and “can only be waived by an Act of the General
Assembly which specifically provides that sovereign immunity is
thereby waived and the extent of such waiver.” Ga. Const. of 1983,
6
Art. I, Sec. II, Par. IX (e). 2 This provision reserved constitutionally
the common-law doctrine of sovereign immunity as traditionally
understood by Georgia courts. See Lathrop v. Deal, 301 Ga. 408, 423
(II) (C) (801 SE2d 867) (2017). That common-law doctrine “was
understood . . . as a principle derived from the very nature of
sovereignty” and generally provided that “[t]he State could not,
without its own express consent, be subjected to an action of any
kind.” Id. at 412-413 (II) (A) (citation and punctuation omitted).
“[A]bsent some waiver by the Georgia Constitution itself or the
statutory law, the doctrine of sovereign immunity bars suits for
injunctive . . . relief against the State, its departments, and its
officers in their official capacities[.]” Bd. of Commrs. of Lowndes
County v. Mayor and Council of the City of Valdosta, 309 Ga. 899,
2 The Georgia Constitution also provides that “[t]he General Assembly
may waive the immunity of counties, municipalities, and school districts by
law.” Ga. Const. of 1983, Art IX, Sec. II, Par. IX. Although the immunity of
these entities is not directly at issue in this case, much of the relevant case law
cited in this opinion comes from the context of county or municipal immunity.
As we recently explained, the scope of whatever waiver the Just Compensation
Provision provides is not limited to the sovereign immunity of the State, but
extends to other sorts of governmental immunity as well, including municipal
immunity. See Gatto v. City of Statesboro, __ Ga. __, __ (2) (860 SE2d 713)
(2021).
7
903 (2) (a) (848 SE2d 857) (2020).
“The burden of demonstrating a waiver of sovereign immunity
rests upon the party asserting it.” Ga. Dept. of Labor v. RTT Assocs.,
Inc., 299 Ga. 78, 81 (1) (786 SE2d 840) (2016). Implied waivers of
sovereign immunity are generally disfavored. See Ga. Dept. of
Corrections v. Couch, 295 Ga. 469, 473-474 (2) (759 SE2d 804)
(2014); Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307)
(2013), overruled on other grounds by Rivera v. Washington, 298 Ga.
770, 778 n.7 (784 SE2d 775) (2016); Currid v. DeKalb State Court
Probation Dept., 285 Ga. 184, 186-187 (674 SE2d 894) (2009). But
we have recognized implied waivers when the implication
necessarily arises. See id. at 95-96 (1) (sovereign immunity does not
bar claims under whistleblower retaliation statute, OCGA § 45-1-4,
given that statute specifically creates a right of action against the
government that would otherwise be barred by sovereign immunity
and expressly states that an aggrieved party may collect money
damages against the government in connection with a successful
claim); SJN Properties, LLC v. Fulton County Bd. of Assessors, 296
8
Ga. 793, 799 & n.6 (2) (b) (ii) (770 SE2d 832) (2015) (sovereign
immunity does not preclude claims for mandamus relief under
OCGA § 9-6-20 given express statutory authorization for actions
that by their nature may be sought only against public officials).
Similarly, a constitutional provision may waive sovereign immunity
by necessary implication. See State Highway Dept. of Ga. v.
McClain, 216 Ga. 1, 4 (2) (114 SE2d 125) (1960) (“It is, of course, well
settled that a county in virtue of being a subdivision of the State is
not liable to suit for any cause of action unless made so by statute or
by necessary implication from some provision of the Constitution.”
(emphasis supplied)). And it is on this theory that we have indicated
that the Just Compensation Provision waives sovereign immunity
as to claims for money damages flowing from a nuisance. See Center
for a Sustainable Coast, 294 Ga. at 600 (2) (explaining that the
previously recognized “nuisance” exception to sovereign immunity
“was not an exception at all, but instead[] a proper recognition that
the [Georgia] Constitution itself requires just compensation for
takings and cannot, therefore, be understood to afford immunity in
9
such cases”).
(b) The text and context of the Just Compensation Provision
show that it waives sovereign immunity for certain claims for
injunctive relief.
Like sovereign immunity, the principle that private property
may not be appropriated by the government without compensation
also was a longstanding part of the common law. We applied this
principle even before it was explicitly included in the Georgia
Constitution. See Parham v. Justices of Inferior Court of Decatur
County, 9 Ga. 341, 349 (1851) (“It is not, therefore, necessary to go
to the Federal Constitution for [the principle]. It came to us with the
Common Law — it is part and parcel of our social polity — it is
inherent in ours, as well as every other free government. At Common
Law, the Legislature can compel the use of private property, but not
arbitrarily. It treats with the citizen, as owner, for the purchase, and
whilst he cannot withhold it upon offer of compensation, they cannot
seize it without such tender.”); Young v. McKenzie, 3 Ga. 31, 44
(1847) (“[The federal Takings Clause, see U.S. Const. amend. V],
which declares ‘private property shall not be taken for public use
10
without just compensation,’ does not create or declare any new
principle of restriction, either upon the legislation of the National or
State government, but simply recognized the existence of a great
common law principle, founded in natural justice, especially
applicable to all republican governments, and which derived no
additional force, as a principle, from being incorporated into the
Constitution of the United States.” (emphasis in original)).
Early on, some key concepts based on this principle began to
emerge in our case law applying the common law right — i.e., even
before the Just Compensation Provision entered the Georgia
Constitution in 1861. See Ga. Const. of 1861, Art. I, Par. XXI. First,
the notion that payment must be made (or at least offered) prior to
a taking was part of the right. See Parnham, 9 Ga. at 356 (“The
authorities agree mainly in this, that the compensation, or offer of
it, must precede or be concurrent with the seizure and entry upon
the property to construct the road.”); Young, 3 Ga. at 45 (“It is
admitted that the Irwinton Bridge Company have taken the private
property of the defendants, for the erection of the eastern abutment
11
of their bridge. Have they made them just compensation therefor as
required by the Constitution? We think not, and before they can be
deprived of their land, for the permanent use of the bridge, this must
be done.” (emphasis in original)).
Second, private landowners could obtain an injunction against
government actors to stop a taking where compensation had not
been provided. See Parham, 9 Ga. at 344-355 (motion for injunction
as to unenclosed lands should have been granted given that
statutory scheme made no provision for compensating owner upon
taking of such lands). But we allowed such claims with the caveat
that injunctions could be obtained only if the landowners had
satisfied whatever requirements the law placed on them to obtain
compensation through established procedures. See id. at 355-358(motion for injunction as to enclosed lands properly denied on basis
that landowner had not made application pursuant to statutory
requirements). Similarly, such an injunction would issue only
pending government satisfaction of its obligations under such
procedure. See Young, 3 Ga. at 45 (“The landholder stands upon all
12
his rights, and may enforce them by all legal remedies, until he is
divested of his title for the use of the public in the manner prescribed
by the Act of Incorporation.” (emphasis supplied)). Relatedly, we
held that the government did not have the power to take private
property through a procedure that did not provide for compensation
— in such a case, it was not exercising its power of eminent domain
at all, and thus could be liable for damages. See Parham, 9 Ga. at
354-355; see also Markham v. Brown, 37 Ga. 277, 281-283 (1867)
(county justices who took possession of plaintiff’s land for smallpox
hospital can be liable in trespass given that they acted under a
statute that did not provide for compensation). 3
Since the Just Compensation Provision first entered the
Georgia Constitution in 1861, it has undergone frequent textual
changes, but for its first century of existence had always provided
that a government entity generally must pay just compensation
3 Although Markham was decided after the Just Compensation Provision
first appeared in the Georgia Constitution, it appeared to rely only on the
“great fundamental principle” as embodied in the federal Takings Clause. See
Markham, 37 Ga. at 282.
13
before taking private property. See Ga. Const. of 1861, Art. I, Par.
XXI. (“In cases of necessity, private ways, and the right to carry
water over land for the purpose of mining and draining, may be
granted upon just compensation being first paid; and with this
exception, private property shall not be taken except for public use;
and then, only upon just compensation; such compensation, except
in cases of pressing necessity, to be first provided and paid.”); Ga.
Const. of 1865, Art. I, Par. XVII (“In cases of necessity, private ways
may be granted upon just compensation being first paid, and with
this exception private property shall not be taken save for public use
and then only on just compensation to be first provided and paid
unless there be a pressing unforeseen necessity in which event the
General Assembly shall make early provision for such
compensation.”); Ga. Const. of 1868, Art. I, Sec. XX (“Private ways
may be granted upon just compensation being paid by the
applicant.”); Ga. Const. of 1877, Art. I, Sec. III, Par. I (“In cases of
necessity, private ways may be granted upon just compensation
being first paid by the applicant. Private property shall not be taken,
14
or damaged, for public purposes, without just and adequate
compensation being first paid.”); Ga. Const. of 1945, Art. I, Sec. III,
Par. I (same).
Beginning in 1960, Georgians approved more significant
textual changes to the Just Compensation Provision that limited the
circumstances in which payment before taking or damaging is
constitutionally required, while retaining the default prepayment
requirement. A 1960 constitutional amendment preserved the
previous language — “Private property shall not be taken, or
damaged, for public purposes, without just and adequate
compensation being first paid” — but also included a new exception
to the prepayment requirement:
[W]hen private property is taken or damaged for public
road and street purposes by the State and the counties
and municipalities of the State, just and adequate
compensation therefor need not be paid until the same
has been finally fixed and determined as provided by law,
but such just and adequate compensation shall then be
paid in preference to all other obligations except bonded
indebtedness.
Ga. Laws 1960, p. 1225; see also Ga. Laws 1961, p. 755. This change
was carried over into the 1976 Constitution. See Ga. Const. of 1976,
15
Art. I, Sec. III, Par. I (1). A further amendment ratified in 1978
added “public transportation purposes” to takings and damaging
that were exempt from the prepayment requirement. See Ga. Laws
1979, pp. 1865-1866; Ga. Laws 1978, pp. 2318-2319. And the 1983
Constitution included an amended version of the Just Compensation
Provision that retained the first-paid language but further limited
the circumstances under which it would apply, including exceptions
for “public road or street purposes, or for public transportation
purposes, or for any other public purposes as determined by the
General Assembly[.]” Ga. Const. of 1983, Art. I, Sec. III, Par. I (b).
This remains the operative language today.4
4 We note that at least some parts of the complex statutory scheme
regarding eminent domain also appear to require payment to precede a taking.
See, e.g., OCGA § 22-1-5 (“Except in cases of extreme necessity and great
urgency, the right of eminent domain cannot be exercised without first
providing for just compensation to the owner for the interference with his
exclusive rights.”); OCGA § 22-2-81 (“The entering of an appeal and the
proceedings thereon shall not hinder or delay in any way the condemnor’s right
to use the condemned property or interest, provided that the condemnor pays
or tenders to the owner the amount of the award and, in case of the refusal of
the owner to accept the award, deposits the amount awarded with the clerk of
the superior court for the benefit of the owner.”); OCGA § 32-3-2 (“All
acquisition of property or interests for public road and other transportation
purposes shall proceed under the methods set out in this article and in Title
16
Notwithstanding these changes, it is fair to say that the default
constitutional requirement that compensation must be paid prior to
a taking remained in the Just Compensation Provision throughout.
And as early as 1881, we held that the Just Compensation Provision
waived governmental immunity for some claims for monetary relief.
See City of Atlanta v. Green, 67 Ga. 386, 387-389 (1) (1881). In Green,
we construed the 1877 version of the Just Compensation Provision,
which required the payment of compensation not only before private
property was “taken” for public purposes, but also before it was
“damaged.” Ga. Const. of 1877, Art. I, Sec. III, Par. I. We concluded
that this change abrogated a prior rule that municipal corporations
were not liable for consequential damages caused by the raising and
lowering of street grades. See Green, 67 Ga. at 387-389 (1). And in a
22.”) (emphasis added); OCGA § 32-3-7 (a) (title to condemned property vests
in the condemnor “[u]pon the filing of the declaration of taking and the deposit
into court, which deposit shall be made at the time the declaration of taking is
filed to the use of the persons entitled thereto, of the sum of money estimated
in the declaration by the condemning authority to be just compensation”). But
the extent to which the General Assembly has exercised its constitutional
power to permit the exercise of eminent domain without prepayment has not
been briefed or argued, and we express no opinion on that question. In any
event, the State does not point to any statute permitting the taking or
damaging of Mixon’s property without prepayment.
17
case decided shortly thereafter — without addressing sovereign
immunity, as no government entity was a party to the case — we
held that the Just Compensation Provision allowed an injunction to
stop a taking under the authority of the State where compensation
had not yet been paid. See Chambers v. Cincinnati & G.R.R., 69 Ga.
320, 324-326 (1882).
We acknowledged this case law in our 1883 decision in Moore
v. Atlanta, 70 Ga. 611 (1883), which addressed whether the Just
Compensation Provision waived governmental immunity for a claim
of injunctive relief. But Moore, which involved a claim for an
injunction against a street grading project performed on public
property with only indirect effects on private property that could be
compensated by money damages, distinguished Chambers as
involving an impending seizure of private property. See Moore, 70
Ga. at 615-616 (4). And instead of engaging with the text of the Just
Compensation Provision to answer the question of whether
governmental immunity precluded a claim for injunctive relief, the
Moore opinion provided equitable reasons for distinguishing the
18
claim for money damages at issue in Green: although it was fair to
pay an individual landowner for his damages, permitting an
injunction against a particular street grading “might damage the
march of improvement in a great and growing city[.]” Id. at 615 (4).5
We subsequently relied on Moore to bar injunctive relief in
apparently similar cases. See, e.g., Floyd County v. Fincher, 169 Ga.
460, 463 (150 SE 577) (1929); Brown v. City of Atlanta, 167 Ga. 416,
428 (145 SE 855) (1928); Fleming v. Rome, 130 Ga. 383, 383-384 (61
SE 5) (1907). But we allowed claims for injunctive relief against
government entities in other cases, particularly those involving
municipalities’ discharge of sewage onto private land. See, e.g., City
of Waycross v. Houk, 113 Ga. 963, 964-965 (39 SE 577) (1901); Butler
v. City of Thomasville, 74 Ga. 570, 571, 575-576 (2) (1885). And in
5 We note that granting injunctive relief requires a highly case-specific
balancing of the equities. See Brown v. Tomlinson, 246 Ga. 513, 515 (272 SE2d
258) (1980) (“Among the duties of a trial judge in making a decision on an
injunction case is the duty to balance the equities.”). By relying heavily on
equitable concerns in concluding that injunctive relief was barred by
governmental immunity, Moore may have conflated the issue of immunity with
whether injunctive relief was available on the merits. Consideration of such
equitable concerns is often necessary in determining whether injunctive relief
is warranted on the merits. But such merits considerations are not part of the
analysis of whether injunctive relief is barred by governmental immunity.
19
1968, we held in McFarland v. DeKalb County, 224 Ga. 618, 618-619
(1) (163 SE2d 827) (1968), that a private landowner could pursue
injunctive relief against a county accused of “dumping” water in
sufficient quantities such that it amounted to a trespass that
constituted a taking or damaging of property.
These post-Moore cases allowing injunctive relief largely did
not grapple explicitly with the question of governmental immunity.
But shortly before ratification of the 1974 constitutional amendment
conferring constitutional status on sovereign immunity, we squarely
rejected arguments that governmental immunity bars claims for
injunctive relief in the inverse condemnation context, while
attempting to make sense of apparent inconsistencies in our case
law. In Baranan v. Fulton County, 232 Ga. 852, 856 (209 SE2d 188)
(1974), we held that a trial court had erred in concluding that a
county can never be enjoined from maintaining a continuing
nuisance. Recognizing that “it may not be possible to reconcile all
that has been said in the numerous cases dealing with injuries to
private property by public bodies,” we attempted to draw a
20
distinction between two lines of cases. In one line of cases, including
Moore, we held that “extensive public improvements will not be
enjoined because consequential damages have not been paid to
property owners[.]” Baranan, 232 Ga. at 855. In the other line of
cases, this Court held that a court may enjoin “a public improvement
[that] has the effect of creating a continuing nuisance on private
property[.]” Id. at 855.
In Baranan, the plaintiff brought a claim for injunctive relief
against drainage-system changes that allegedly created a
continuing nuisance by increasing the flow of surface water on
private property. See id. at 853. Based on the categorization of prior
case law, we rejected the defendant county’s invocation of immunity,
which was based on a statute that provided that “[a] county is not
liable to suit for any cause of action unless made so by statute.” Id.at 856 (citing former Code § 23-1502). 6 In so doing, we relied on “the
principle that the right of action would arise by necessary
6 This statutory provision remains in the Georgia Code at OCGA § 36-1-
4.
21
implication from” the Just Compensation Provision. Id.
In those cases examined by Baranan in which injunctive relief
was disallowed, there had not been a taking of private property at
all, nor even a trespass that damaged private property, and so
injunction of government action was not available. See Moore, 70
Ga. at 615-616 (holding the grading of the city’s streets and
sidewalks, although inconvenient to the adjacent landowner, was
not a taking because “the city is grading its own sidewalks” and “it
is upon its own soil”); Brown v. Atlanta Ry. & Power Co., 113 Ga.
462, 476 (4) (39 SE 71) (1901) (trial court’s refusal to enjoin the
running of streetcars in front of plaintiff’s property was “in effect a
finding that it would not be damaged”); Fleming, 130 Ga. at 390 (no
injunction where grading of street allegedly left plaintiff’s property
“down in a hole”); Brown, 167 Ga. at 421 (no injunction for alleged
temporary obstruction of ingress and egress to property); State Hwy.
Dept. v. Strickland, 213 Ga. 785, 787-788 (102 SE2d 3) (1958) (error
to enjoin installation of concrete curbs on public right of way in front
of plaintiffs’ property that allegedly would prevent trucks access to
22
loading dock).
By contrast, the inverse condemnation cases in which
injunctive relief was available involved encroachments on private
land such that they could amount to a trespass. See Butler, 74 Ga.
at 574 (discharge of sewage on plaintiff’s land); City of Atlanta v.
Warnock, 91 Ga. 210, 214 (18 SE 135) (1892) (evidence that sewer
manholes in street adjacent to plaintiff’s property emitted large
amount of poisonous gases); City of Atlanta v. Williams, 218 Ga. 379,
379-380 (128 SE2d 41) (1962) (evidence that county’s installation of
catch basins and sewer drains near plaintiff’s property caused filthy
water to collect on property). In considering today the cases sorted
by Baranan, we do not necessarily agree that each case was rightly
decided or that Baranan’s categorization of them was perfect. 7 But
7 It is difficult to harmonize some of the cases that held that no injunctive
relief was available because private property was not taken, but suggested that
the plaintiff nonetheless might seek monetary damages. See Moore, 70 Ga. at
614 (3); Brown, 167 Ga. at 428. As noted above, Moore may have conflated the
issue of immunity with equitable concerns going to the merits of a claim for
injunctive relief. We need not resolve this apparent incongruity in order to
decide this case, given that this case alleges physical damage to the plaintiff’s
property. But we question the continued viability of cases that suggest that a
government entity is immune from injunctive relief over an appropriation of
23
we need not conclude either of those things to recognize the
continuing viability of the broad distinction we identified in
Baranan.
What is important is that, as of the time Baranan was decided,
this Court had held that the Just Compensation Provision’s
language — “[p]rivate property shall not be taken, or damaged, for
public purposes, without just and adequate compensation being first
paid” — waived sovereign immunity for inverse condemnation
claims for injunctive relief to stop a government encroachment on
private land that amounted to a trespass, until the property is
condemned. And that holding was largely consistent with the body
of case law preceding it, dating back to the previous century. See,
e.g., Butler, 74 Ga. at 575-576 (2). It is of no matter that the earliest
cases largely involved outright acquisition of private property, as
opposed to a physical invasion that merely damaged the property,
private land sufficiently significant to give rise to liability for money damages.
This is especially so if certain government regulations can take or damage
private property even in the absence of any physical intrusion on that property.
Cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414-416 (43 SCt 158, 67 LE
322) (1922) (discussing regulatory takings).
24
given that those early cases predated the 1877 change to the Just
Compensation Provision that applied a prepayment requirement to
both “taking” and “damaging.” See Brown, 167 Ga. at 424 (“Even
then it would be a nice question as to whether such an appropriation
should not more properly be termed a ‘damaging’ than a ‘taking.’ In
either event compensation would have to be paid, and that is the
material thing in such a matter.”).
Given the textual changes to the Just Compensation Provision
that followed, particularly in 1960, 1978, and 1983, we must bear in
mind that we cannot apply uncritically our decisions interpreting
old versions of a constitutional provision to new language. See
Stratacos v. State, 293 Ga. 401, 408 (2) (b) n.10 (748 SE2d 828)
(2013) (“[I]t is always risky for courts to rely on a precedent
interpreting a statute or other legal text without first examining
whether the legal text on which the precedent was based has been
revised and then considering the effect of any such change.”); cf.
Elliott v. State, 305 Ga. 179, 184-187 (II) (B) (824 SE2d 265) (2019)
(a constitutional provision that is readopted without material
25
change into a new constitution and that has received a consistent
and definitive construction is presumed to carry forward that
consistent construction). But such decisions construing prior
versions of a provision often provide important context, particularly
if the pertinent language is similar, in understanding the meaning
of a more recent version of that provision. See Elliott, 305 Ga. at 187
(II) (B) (in determining the meaning of a particular legal phrase, we
consider the broader context in which the text was enacted,
including other law — constitutional, statutory, decisional, and
common law alike — that forms the legal background of the
constitutional provision).
For this reason, it is significant that in November 1974, just
one month after Baranan was decided, the voters of Georgia
enshrined the then-existing law of sovereign immunity into the state
Constitution by way of an amendment. See Lathrop, 301 Ga. at 420(II) (B). The 1974 amendment was then carried forward into the
Constitution of 1976. See id. (citing Ga. Const. of 1976, Art. VI, Sec.
V, Par. I). And that Constitution also retained the same version of
26
the Just Compensation Provision at issue in Baranan. See Ga.
Const. of 1976, Art. I, Sec. III, Par. I (1). Baranan, consistent as it
was with prior Georgia case law allowing injunctions to stop illegal
government taking of private property, thus represents both the law
of sovereign immunity that was constitutionalized in 1974, as well
as important legal context for the 1976 version of the Just
Compensation Provision. 8
(c) We reject the State’s attempts to undermine our prior
8 Following Baranan, we have continued to hold that the Just
Compensation Provision can act as a waiver of sovereign immunity for claims
for injunctive relief. See Columbia County v. Doolittle, 270 Ga. 490, 491 (1) (512
SE2d 236) (1999); Duffield v. DeKalb County, 242 Ga. 432, 433 (1) (249 SE2d
235) (1978). This case does not require us to consider whether Baranan and its
progeny constituted a consistent and definitive construction of the Just
Compensation Provision, such that language readopted into subsequent
constitutions is presumed to carry the same meaning. See Elliott, 305 Ga. at
184-185 (II) (B). It does not even require us to consider whether all of these
decisions are correct; although Doolittle does not cite our 1995 decision holding
that sovereign immunity virtually never bars a claim for injunctive relief in
any context, see Intl. Bus. Machines Corp. v. Evans, 265 Ga. 215, 216 (1) (453
SE2d 706) (1995), overruled by Ga. Dept. of Natural Resources v. Center for a
Sustainable Coast, Inc., 294 Ga. 593, 603 (2) (755 SE2d 184) (2014), it certainly
is consistent with that errant holding. But Baranan’s constitutional
construction is at least relevant to the meaning of the language as used in
subsequent constitutions. See Elliott, 305 Ga. at 187 (II) (B) (presumption
arising from a consistent and definitive construction is simply a reflection of
the principle that we look to the context in which text was enacted in
determining its meaning).
27
precedent.
The State does not explicitly ask us to overrule Baranan. 9 The
State does point to the line of decisions that suggested that the Just
Compensation Provision did not permit injunctions preventing the
State from constructing public improvements, at least where no
private property was actually taken. See, e.g., Moore, 70 Ga. at 613-
616 (4). But, as Baranan explained, those pre-Baranan cases that
remain good law fall into the category in which no property was
taken or even physically damaged, such that injunctive relief was
not available.10 And the two post-Baranan cases relied on by the
9 The State suggested at oral argument that application of the usual
factors we consider in deciding whether to overrule precedent might weigh in
favor of overruling Baranan. The State also argues that Baranan does not
actually address whether the Just Compensation Provision waives the State’s
sovereign immunity for injunctive relief. But the statute invoked by the county
in Baranan is a statutory embodiment of the doctrine of sovereign immunity
that was first enshrined in the Georgia Constitution in 1974, the same year
that Baranan was decided. See Nelson v. Spalding County, 249 Ga. 334, 334-
336 (1) (290 SE2d 915) (1982); Revels v. Tift County, 235 Ga. 333, 333-334 (1)
(219 SE2d 445) (1975). And that is important because, as noted above,
“sovereign immunity at common law, as it long had been understood by
Georgia courts, and the sovereign immunity reserved by the 1974 amendment
were one and the same[.]” Lathrop, 301 Ga. at 420 (II) (B).
10 The pre-Baranan case that least fits this category was overruled in an
earlier stage of the McFarland litigation. See McFarland v. DeKalb County,
214 Ga. 196, 201 (2) (154 SE2d 203) (1967) (“If our ruling in this case is
28
State clearly fall into the category of cases distinguished by Baranan
itself as not involving a taking or physical damage. See Evans v. Just
Open Government, 242 Ga. 834, 836-837, 839-840 (5) (251 SE2d 546)
(1979) (reversing grant of injunction enjoining construction of prison
on public land, noting that “a prison is not, in a legal sense, a
nuisance” and “courts will not enjoin erection of a public work at the
behest of someone whose property is not actually taken”); Dept. of
Transp. v. Roberts, 241 Ga. 433, 435 (246 SE2d 293) (1978) (relying
on Moore and its progeny to hold injunctive relief unavailable where
challenged construction was not on plaintiff motel owners’ property
or even the adjoining road; rather, it simply made interstate access
“more circuitous”).
The State also argues that the language of the Just
Compensation Provision is insufficiently specific as to the remedy
that it provides to waive the State’s sovereign immunity for a claim
for injunctive relief. And the State contends that its “ability . . . to
contrary to what was held in [Fincher], the rule made in that case was not by
a full bench; and we are bound by the full bench decision in [Nalley v. Carroll
County, 135 Ga. 835 (70 SE 788) (1911)].”).
29
take private property evaporates if landowners can enjoin the State
from taking or damaging that property in the first place.” But the
State is wrong; it is the right the Just Compensation Provision
affords landowners that would be illusory if governments were
wholly immune from injunctive relief. The Just Compensation
Provision by its plain text — at the time we construed it in Baranan,
as well as today — imposes on the State an obligation, albeit with
exceptions that have increased over time, to pay just and adequate
compensation before taking or damaging private property. If the
State could claim sovereign immunity from a suit for injunctive
relief against a continuing nuisance that damages private property,
then the State’s obligation to provide just compensation prior to
doing the damage where the Constitution expressly requires as
much would itself be hollow. And as explained above, we have
previously made it clear through our decisions that a constitutional
provision may waive sovereign immunity by necessary implication,
not only by explicit language contained in the text of the
Constitution. Therefore, the Just Compensation Provision waives
30
sovereign immunity for a claim for injunctive relief where a
requirement of prepayment applies and the compensation has not
been paid.11
By the same token, where a government agency allegedly takes
or damages private property without condemning any portion of, or
interest in, the property at all, the Just Compensation Provision also
11 The State can insulate itself from being subject to an injunction by
exercising its power to condemn property through payment of just
compensation. See Chambers, 69 Ga. at 325 (“If the respondent below seeks an
appeal to the courts against what he deems to be an unjust and excessive
assessment by the appraisers, let him abide until the result is known, pay first
the just and adequate compensation finally awarded, and then no
constitutional barrier will stand against his entry and occupancy on the lands
for the purposes for which it was condemned.”). There is some case law that
may be read to hold that the State may not use a condemnation action to
provide compensation for merely anticipated “damage” to property but is
limited to using its power of eminent domain to effect a “taking.” See Metro.
Atlanta Rapid Transit Auth. v. Trussell, 247 Ga. 148, 151 (1) (273 SE2d 859)
(1981) (“We do not find that the people, in adopting the constitution , . . .
intended to allow a public body to condemn the right to damage property
without also taking a property interest.”). To the extent that Trussell so holds,
it is inconsistent with the case law that precedes it, as well as the text of the
Just Compensation Provision. But this case, which holds that Mixon’s claim
for injunctive relief is not barred by sovereign immunity, does not require us
to consider whether Trussell was correctly decided.
We recognize that it may sometimes be difficult to anticipate in advance
that a given action on public property will create a nuisance amounting to a
constitutional damaging of private property. But the Just Compensation
Provision does not contain an exception for a taking or damage on the basis
that that it is difficult to foresee. Moreover, injunctive relief may be
inappropriate even if not barred by sovereign immunity.
31
effects a waiver of sovereign immunity for injunctive relief. Where
the government wrongly insists that it has not taken or damaged
anyone’s property and thus owes no compensation, it is not
exercising its eminent domain power as laid out in the Georgia
Constitution and related statutory provisions at all. Rather, it is
violating the Constitution’s Just Compensation Provision. See
Markham, 37 Ga. at 281-283; see also McFarland, 224 Ga. at 619 (1)
(alleged continuing trespass and nuisance resulting from a county’s
divergence of surface water onto the plaintiff’s property “would be a
continuing nuisance authorizing a court of equity to restrain it and
to require the defendants to cease and desist until and unless it was
condemned for public purposes.”), quoted approvingly in Baranan,
232 Ga. at 853-855.
This understanding of the Just Compensation Provision’s
interaction with the doctrine of sovereign immunity may also be
consistent with a recent amendment to the Georgia Constitution not
at issue here. That amendment provides:
Sovereign immunity is hereby waived for actions in the
32
superior court seeking declaratory relief from acts of the
state or any agency, authority, branch, board, bureau,
commission, department, office, or public corporation of
this state or officer or employee thereof or any county,
consolidated government, or municipality of this state or
officer or employee thereof outside the scope of lawful
authority or in violation of the laws or the Constitution of
this state or the Constitution of the United States.
Sovereign immunity is further waived so that a court
awarding declaratory relief pursuant to this Paragraph
may, only after awarding declaratory relief, enjoin such
acts to enforce its judgment. Such waiver of sovereign
immunity under this Paragraph shall apply to past,
current, and prospective acts which occur on or after
January 1, 2021.
Ga. Const. of 1983, Art. I, Sec. 2, Para V (b) (1) (amended by Ga. L.
2020, p. 917, § 1). Both parties have taken the position that the
amendment does not apply to this case because Mixon does not seek
declaratory relief, and we do not consider whatever implications it
may have here. But we note that this amendment might also allow
an injunction to enforce a court declaration that government has
done something constituting the taking or damaging of property
without first providing compensation or going through the legal
33
process for exercising eminent domain over the property.12
(d) Exceptions to the requirement of prior payment found in
the Just Compensation Provision may limit the scope of its waiver of
sovereign immunity, but not in a way relevant here.
As noted above, amendments to the Just Compensation
Provision in recent decades have created new exceptions to the
requirement that a private landowner receive just compensation
before his land is taken or damaged for public use. Under the current
Constitution, these exceptions include appropriations “for public
road or street purposes, or for public transportation purposes, or for
12 We also view as unpersuasive the State’s argument drawing on our
prior construction of the provision of the Georgia Constitution waiving
sovereign immunity “as to any action ex contractu for the breach of any written
contract now existing or hereafter entered into by the state or its departments
and agencies.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c). The State notes
that we have concluded that this provision waives sovereign immunity only to
the extent of its specific language, i.e., only if a written contract exists. See Ga.
Dept. of Labor, 299 Ga. at 82 (2). The State argues that we should likewise hold
here that sovereign immunity is waived in inverse condemnation cases only to
the extent of the express text of the Just Compensation Provision, and that
this means the waiver does not extend to claims for injunctive relief. But this
argument assumes that the text of the Just Compensation Provision does not
effect a waiver of claims for injunctive relief. As discussed above, we conclude
that the Provision’s language does waive sovereign immunity for certain claims
for injunctive relief — i.e., where the requirement to first pay just and
adequate compensation applies, and the State has failed to comply with that
requirement.
34
any other public purposes as determined by the General Assembly.”
Ga. Const. of 1983, Art. I, Sec. III, Par. I (b). A waiver of sovereign
immunity based on failure to prepay would likely not extend to cases
in which no prepayment requirement applies.13 Our case law does
not appear to have grappled with the ramifications, if any, of these
textual changes. See Dept. of Transp. v. Edwards, 267 Ga. 733, 738-
739 (4) (482 SE2d 260) (1997) (rejecting State’s argument that trial
court erred by awarding landowner both money damages for taking
of his property for turn lane and injunction requiring DOT to remove
it).
But we need not decide here to what extent these textual
changes may limit the breadth of the waiver of immunity found in
the Just Compensation Provision. The State did not argue below
that its actions in this case constitute a taking “for public road or
13 As noted above, a number of statutes appear also to require
prepayment, perhaps even in contexts where the Just Compensation Provision
does not. It may be that the logic of the implied waiver we consider today would
suggest that an implied waiver might also arise from any statutory
prepayment requirements, and perhaps other statutory conditions precedent
to the exercise of eminent domain. But that question is not presented here, and
we express no opinion about it.
35
street purposes, or for public transportation purposes, or for any
other public purposes as determined by the General Assembly,” such
that the prepayment requirement does not apply, so that question is
not before us. Indeed, as discussed above, where a government
entity denies that it is taking or damaging property at all, it is not
purporting to exercise its eminent domain power and cannot claim
that it is taking or damaging property for any particular purpose.
Here, the State in its answer to Mixon’s complaint denied that it
“committed an inverse condemnation,” denied that the road
construction it undertook caused the alleged storm runoff, and
denied that it had taken Mixon’s property without providing just
and adequate compensation. The record does not contain any
indication that the State has deviated from that position as the case
has proceeded before the trial court and on appeal. Indeed, the State
continued to maintain before the Court of Appeals that it had not
caused the flooding by failing to maintain the roadway. Thus, at
least in this procedural posture, the State cannot contend that
Mixon’s property has been “taken or damaged by the state . . . for
36
public road or street purposes, or for public transportation purposes,
or for any other public purposes as determined by the General
Assembly[.]” Ga. Const. of 1983, Art. I, Sec. III, Par. I (b).
(e) Sovereign immunity does not bar Mixon’s claim for
injunctive relief.
The Court of Appeals reasoned that because the Just
Compensation Provision waives sovereign immunity for damages
claims premised on a taking or damaging of private property, it
necessarily also waives sovereign immunity for Mixon’s claim for
injunctive relief. As discussed above, this conclusion is overbroad:
some claims for injunctive relief premised on a taking or damaging
of private property may indeed be barred by sovereign immunity. In
particular, where no prepayment requirement applies, or the State
has properly availed itself of the legal process for exercising its
power of eminent domain, sovereign immunity may well bar
injunctive relief.
But on the record before us, we cannot conclude that Mixon’s
claim for injunctive relief is so barred. Based on claims that GDOT’s
failure to maintain its storm water drainage systems have resulted
37
in regular flooding on her property, Mixon alleges that GDOT has
taken her property for public purposes without just and adequate
compensation. There is no suggestion in the record that GDOT has
afforded Mixon compensation for this alleged taking; indeed, her
complaint seeks money damages. Nor is there any suggestion that
GDOT has availed itself of legal process to exercise its eminent
domain power over Mixon’s property.
As did the Court of Appeals, we caution that we are not holding
that Mixon actually is entitled to obtain injunctive relief. See Mixon,
355 Ga. App. at 467 (3). A waiver of sovereign immunity says
nothing about whether a claim is viable on the merits. Although
Mixon seeks a permanent injunction “in order to prevent future
nuisance and continual trespass from being inflicted upon” her
property, her complaint contains no allegation that her damages
claim does not provide her an adequate remedy for such a tort. And
counsel for Mixon acknowledged at oral argument that money could
make his client whole, while arguing that she was not limited to that
remedy. “[T]he extraordinary remedy of injunction does not lie in
38
favor of one who has an adequate remedy at law.” Ledbetter v.
Callaway, 211 Ga. 607, 610 (87 SE2d 317) (1955); see also OCGA
§ 9-5-1 (“Equity, by a writ of injunction, may restrain . . . a
threatened or existing tort, or any other act of a private individual
or corporation which is illegal or contrary to equity and good
conscience and for which no adequate remedy is provided at law.”
(emphasis supplied)). Of course, the State may have other defenses
going to the merits, as well. But the only question before us is
whether sovereign immunity bars Mixon’s claim, and the Court of
Appeals correctly concluded that it did not.
Judgment affirmed. All the Justices concur, except Boggs, P.J.,
not participating.
39