City of Atlanta v. Heirs of Champion

Bowles, Justice.

Certiorari was granted in this case to review the decision of Heirs of Champion v. City of Atlanta, 149 Ga. App. 470 (254 SE2d 706) (1979). Upon our consideration of the case, we reverse the Court of Appeals and affirm the trial court in holding that the City and MARTA acted responsibly, reasonably, and in good faith, and did not abuse the broad discretion vested in them in deciding that fee simple acquisition was necessary.

The facts of this case are set forth in the Court of Appeals’ decision and will not be repeated except to say that the case involves the condemnation of land in downtown Atlanta for use in constructing an entrance to an underground terminal to be constructed by MARTA. It was generally agreed that MARTA needed rights to the surface, sub-surface, and 36 feet of air space above the surface. The controversy centered around the condemnee’s desire to retain the air rights above 36 feet, and MARTA’s conflicting desire to acquire the parcel in fee simple.

The Court of Appeals, while recognizing the broad discretion vested in a condemning authority to condemn in fee simple, found that the record in this case did not authorize the trial court’s finding that the city reached a good faith determination that fee simple ownership of the subject property was reasonably necessary for the fulfillment of MARTA’s public purposes. In so holding, the Court of Appeals improperly acted as a fact finder, substituting its judgment for that of the special master and the trial judge.

Code Ann. § 36-603 (a) provides that an authorized condemning body shall be the exclusive judge of the public need of property to be acquired and the amount of property to be acquired for the public purpose. See Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 (227 SE2d 362) (1976). The question of whether there is a necessity for taking the fee is a matter of legislative discretion, which will not be interfered with or controlled unless the authority acts in bad faith or beyond the powers conferred upon it by law. Miles v. Brown, 223 Ga. 557 (156 SE2d 898) (1967). "In the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken.” King v. City of McCaysville, 198 Ga. 829 (33 SE2d 99) (1945); Kellett v. Fulton County, 215 Ga. 551 (111 SE2d 364) (1959).

The record in this case contains evidence to sustain MARTA’s determination of reasonable necessity for acquiring fee simple title to the subject property. While a court may disagree with the methods the condemning authority may choose to accomplish its objectives, it is not authorized to substitute its judgment for that of the authority. On appeal, the judgment must be affirmed unless shown to be clearly erroneous.

Argued September 10, 1979 Decided October 16, 1979 Rehearings denied October 30 aNd November 6, 1979. Kutak, Rock & Huie, W. Stell Huie, Charles N. Pursley, Jr., David G. Russell, for appellants. Arthur K. Bolton, Attorney General, Marion O. Gordon, Senior Assistant Attorney General, Norman S. Fletcher, amicus curiae. Troutman, Sanders, Lockerman & Ashmore, J. Kirk Quillian, Robert L. Pennington, for appellees.

In this case, the special master found that condemnation of the subject property in fee simple was reasonably necessary for MARTA’s public project. The trial judge entered a judgment condemning the property in fee simple for the use of the city. Even though the evidence regarding necessity may have been in conflict, the trial judge was authorized to determine the factual issues in the case. These findings should not be disturbed on appeal if there is evidence to support them. Barrett v. State Hwy. Dept., 211 Ga. 876 (89 SE2d 652) (1955). The Court of Appeals improperly invaded the province of the trial judge by imposing its own evaluation of the evidence. Therefore, we reverse their judgment and affirm the trial court’s opinion.

Judgment reversed.

All the Justices concur, except Nichols, C. J., Undercofler,P. J., and Hill, J., who dissent.