Cline v. McMullan , 263 Ga. 321 ( 1993 )

Fletcher, Justice.

John McMullan petitioned the superior court to condemn a private way over the lands of Pierce Cline as authorized by Art. I, Sec. III, Par. II of the Constitution of the State of Georgia (the Constitution) and OCGA § 44-9-40 et seq. The trial court held a hearing pursuant to OCGA § 44-9-43 and determined that the petition was reasonable. A board of assessors was appointed and the board awarded damages to Cline for the value of the property sought by McMullan for the private way. McMullan appealed this award to the superior court for a jury trial, but he did not tender the amount of the award prior to filing the appeal. Cline filed a motion to dismiss the appeal, contending that the applicable Code sections, when read in light of Woodside v. City of Atlanta, 214 Ga. 75 (103 SE2d 108) (1958), require tender of the assessors’ award as a condition precedent to the filing of an appeal. The trial court denied Cline’s motion to dismiss, and we granted his application for interlocutory appeal to review that ruling.¹ We affirm.

1. The power of eminent domain is derived from the Constitution and there are two provisions that allow the exercise of the condemnation power. The right to exercise the power of eminent domain for public purposes is provided in Art. I, Sec. III, Par. I of the Constitution and one of the procedures adopted by the legislature to define how such power is exercised is codified in Art. 1, Chapter 2 of Title 22 of the Official Code of Georgia. Authority to petition for the grant of a private way is provided in Art. I, Sec. III, Par. II of the Constitution and the procedure to obtain a private way is codified in Art. III, Chapter 9 of Title 44. This case involves the procedure for obtaining a private way.

Title 44 creates a statutory procedure by which an individual can obtain a private way across property owned by another. Title 44 adopts some, but not all, of the procedures found in Art. 1, Chapter 2 of Title 22, which sets out one of the procedures provided for condemnation for public purposes by a public body or corporation authorized to exercise the power of eminent domain.

The issue before this court concerns the proper procedure to be used for appeals from a board of assessors’ ruling in a Title 44 private way proceeding. Regarding appeals Title 44 provides:

Either party shall have the right to appeal from the award of the board of assessors to a jury in the superior court; and such appeals shall be made in accordance with and shall be controlled by Part 5 of Article 1 of Chapter 2 of Title 22.

OCGA § 44-9-44. The key phrase in this statute is “such appeals shall be made . . . .” Title 44 refers only to the portion of Part 5 of Title 22 that sets out the method of appeal. Part 5 contains provisions besides those that set out the procedure for appeals, such provisions being specifically tailored to address issues peculiar to exercise of the power of eminent domain for public purposes. These latter provisions of Part 5 are not designed to be applied to the grant of private ways and were not incorporated into Title 44.

The only portion of Part 5 of Title 22 that applies to appeals under Title 44 is found in OCGA § 22-2-80 which directs that if:

either party is dissatisfied with the amount of the assessors’ award, he or they may, within ten days from the time the award is filed, enter in writing an appeal from the award to the superior court of the county where the award is filed.

The above language from OCGA § 22-2-80 is the only portion of Title 22 that describes how appeals “shall be made” from an award made by a board of assessors.

2. Cline maintains that his property has been “taken” and that before McMullan can appeal, he must pay the compensation set by the board of assessors. Cline bases this contention on Woodside, which held that under Title 22 the condemnor of private land for public use is required to tender the damages prior to appeal. Cline argues that since Woodside interprets Title 22, and the private ways scheme (Title 44) adopts the Title 22 procedure, the holding in Woodside also applies to Title 44. Although this may appear to be a logical interpretation, an examination of the language of Title 44 and the constitutional basis for Woodside reveals that tender was never meant to be a pre-condition to appeal in a private way action.

OCGA § 44-9-47 outlines when and how a private way is granted to a petitioner:

With respect to the judgment of the court in such case, any party may have all remedies provided by law, including a motion for a new trial, a motion for an appeal, a motion for judgment on the pleadings, or a motion for judgment notwithstanding the verdict. Before the judgment becomes final and after the determination of any motions or appeals, the compensation fixed by the jury shall be paid in cash into the registry of the court by the applicant ....

Thus, under the plain language of, the statute, the petitioner does not obtain the property until the judgment becomes final, and a final judgment cannot be entered until all appeals are completed and compensation has been paid.

Woodside is predicated on the fact that the condemnor in a public purpose exercise of eminent domain has obtained the right to the property before the appeal is filed. Thus, the constitutional mandate that “adequate compensation” must be “first paid” (Art. I, Sec. III, Par. I) in public purpose cases requires the tender before appeal because the condemnor’s right to the property interest is fixed. The critical difference between Woodside and this case, which involves a private way, is that Woodside is based on a constitutional provision that, although similar, is not the same as the one that authorizes private ways. The constitutional provisions found in Art. I, Sec. III, Pars. I and II provide that the property right passes from property owner to petitioner at different times in such proceedings depending on whether the proceeding is a public taking (Par. I) or a petition for a private way (Par. II). With regard to eminent domain taking of private property for public purposes, Art. I, Sec. III, Par. I provides that “private property shall not be taken or damaged . . . without just and adequate compensation being first paid.” (Emphasis supplied.) In comparison, Art. I, Sec. III, Par. II provides that “private ways may be granted upon just and adequate compensation being first paid . . . .” (Emphasis supplied.)

The difference in the language of these two constitutional provisions is the key to understanding when the right passes to the petitioner in each type of condemnation. Property which is subject to eminent domain for public purposes may be “taken.” However, a “private way” is not “taken” but must be “granted” and that “grant” can only occur after all of the rights have been finally established, the compensation is paid and the court makes such “grant” by final judgment. The public purpose condemnor has the right to enter and use the property condemned at no risk because the fact that such a condemnor has obtained “title” to the subject property interest will never change on direct appeal. In contrast, a petitioner for a private way has no right to enter the land and put it to use prior to the post-appeal entry of a final judgment (and payment of compensation) and would be at risk to have damaged the property owner if later appeal changed the location, width or necessity of the private way. Requiring pre-appeal payment forces the petitioner for a private way to pay for that which he has not obtained and may not ever obtain. The difference in the language of the two constitutional provisions, one referring to a taking of private property for public use and the other to a granting of a private way, explains why the legislature adopted the language in OCGA § 44-9-47 requiring payment of the just and adequate compensation before the final judgment granting a private way is entered by the court, but after all appeals have been exhausted.

In contrast to Title 22, where the only issue on appeal from the board of assessors to a jury in the superior court is a de novo review of the appropriate level of damages, under Title 44, the width or location of the private way can be altered or even the necessity of the private way can be denied by the jury on appeal. Since nothing about the private way is fixed, the condemnor seeking the private way does not obtain any rights in the land until after all appeals have been exhausted and just compensation has been paid. That the granting of a private way does not occur until appeals have been exhausted is consistent with OCGA § 44-9-47 wherein the petitioner for a private way is directed to pay the valuation of the condemned property into the registry of the court “after the determination of any motions or appeals . . . .” This interpretation of the appellate procedure of private ways is also consistent with this court’s decision in Arnold v. Selected Sites, Inc., 229 Ga. 468 (192 SE2d 260) (1972).

Title 44 provides many safeguards for the property owner which are not provided to the property owner in eminent domain proceedings for public purposes. While an owner whose property has been condemned for a public purpose has forever lost the right to the property and can only contest before the jury the amount of the compensation received for the property,² an owner in a private way action has the opportunity to challenge the necessity, location and width of the private way. Additionally, the private way property owner can extinguish all claims to the private way if the petitioner fails to timely pay the adequate compensation (OCGA § 44-9-47). In comparison, the property owner in a public purpose condemnation is limited to collecting the compensation from the condemnor (OCGA § 22-2-83). Because the protection of the rights of the property owner are foremost under the constitutional provision pertaining to private ways and the statutory scheme provided by the General Assembly is designed to fully protect such rights, we hold that no property right is taken from a property owner, nor vested in a private way petitioner, until after all of the rights have been finally established, the compensation is paid and the court makes such a “grant” by final judgment.

Judgment affirmed.

All the Justices concur, except Clarke, C. J., Benham and Sears-Collins, JJ., who dissent.

1 Jurisdiction of this case lies in the Court of Appeals, but this court elected to hear this appeal in the interest of judicial economy.

2 Note that an owner does have the right to file a collateral attack.