Josh Cabaret, Inc. v. Department of Transportation ( 1987 )

Per curiam.

The Department of Transportation informed the corporation in the spring of 1981 that the building leased by it would be condemned for highway purposes. In June 1982, the Department sent to the corporation a letter, as follows: “This is to advise that due to the proposed construction of the above Highway project, you will be required to move your personal property from the above property. You will not be required to move from and surrender possession of the property prior to September 30, 1982, which is three months from the date of this letter. When title to the above property is secured, you will be notified, in writing, of the exact date you will have to remove your personal property.” Two months later (and before the expiration of ninety days), the corporation removed its business to another site. Shortly thereafter, local government units withdrew their support for the highway project, and all work on the proposed highway, including all condemnation actions in progress, was halted.

The corporation sought to recover from the Department its loss of an advantageous leasehold interest, as well as expenses involved in moving. The trial court granted the Department’s motion for summary judgment and the corporation appeals.

1. The corporation contends that the threat of condemnation “damaged” its leasehold interest to the extent that it accomplished an inverse condemnation under Art. I, Sec. Ill, Par. I of the Constitution of Georgia of 1983. (“[Pjrivate property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”)

2. Eminent domain is “the right of the state ... to reassert. . . its dominion over [a person’s property rights],” OCGA § 22-1-2, and the state must provide for just compensation to the owner for interference with his exclusive rights. OCGA § 22-1-5. “[T]here need not be a physical taking of the property or even dispossession; any substantial interference with the elemental rights growing out of ownership of private property is considered a taking.” Woodside v. City of Atlanta, 214 Ga. 75, 83-4 (103 SE2d 108) (1958).

3. We have held that losses occurring to property before the actual date of taking are not compensable in direct condemnation actions. Thus, while there is a diminution in value as a result of anticipated condemnation, no compensation may be paid. Housing Auth. of Decatur v. Schroeder, 222 Ga. 417 (151 SE2d 226) (1966).

4. The corporation was advised that no move was required before September 1982, and that written notification would precede a required removal. Its decision to move in August 1982, was by voluntary choice, and cannot be attributed to an interference by the Department with its exclusive rights of ownership, use and enjoyment.

5. Whether this action is characterized as direct or inverse condemnation, the losses claimed did not result from an exercise of eminent domain. Hence, as a matter of law, they are not compensable as damage or as taking. See MARTA v. Fountain, 256 Ga. 732 (352 SE2d 781) (1987).

Judgment affirmed.

All the Justices concur, except Clarke, P. J., Smith and Bell, JJ., who dissent.