Department of Transportation v. Fina Oil & Chemical Co. , 194 Ga. App. 185 ( 1990 )

Carley, Chief Judge.

Acting pursuant to OCGA § 32-3-1 et seq., appellant-condemnor initiated condemnation proceedings and deposited, into the registry of the court, the sum of money estimated “to be just compensation for the land taken, including consequential damages to land not taken. . . .” OCGA § 32-3-6 (b) (5). Appellee-condemnee filed, with the superior court, a notice of appeal as provided by OCGA § 32-3-14. Thereafter, appellee, citing OCGA § 9-11-13 (e), sought permission from the trial court to file a counterclaim against appellant. In this proposed counterclaim, it was alleged that appellant’s agents, while engaged in the highway project, made unauthorized use of appellee’s remainder. For this alleged unauthorized use, appellee sought damages. The trial court granted appellee permission to file the counterclaim, but certified its order for immediate review. Appellant’s application for an interlocutory appeal was granted.

The trial court erred in allowing appellee to file the counterclaim in this condemnation action. “All of the procedures outlined in OCGA § 32-3-1 et seq. are geared exclusively towards answering questions relating to the propriety of the condemnation at hand or the value of the condemned land. Here [appellee’s] counterclaim seeks [damages for an alleged unauthorized use of its remainder]. As.such, the subject of the counterclaim lies outside the bounds of this type of condemnation. . . . The legislature made no provision for . . . damages, even of the constitutional variety, in this type of condemnation action. . . . [T]he trial court’s [allowance] of [appellee’s] counterclaim [was erroneous].” Brooks v. Dept. of Transp., 254 Ga. 60, 62 (2, 3) (327 SE2d 175) (1985).

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.