37.1 In General Right of Eminent Domain — Its Power and Exercise Thereof

Where the examining attorney finds a right of eminent domain proceeding relevant to the examination of title, the examiner should bear in mind the general principles set forth in this Chapter.

“The right of eminent domain is the right of the state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on account of public exigency and for the public good.” O.C.G.A. Section 22-1-2.

This right is a right of the United States of America and its authorized agencies to exercise (40 U.S.C. Section 257).

Comment: The taking of property for public use is legislative, and not judicial in function. State Highway Dept. v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964). Eminent domain statutes of the State of Georgia are to be strictly construed. Botts v. Southeastern Pipeline Co., 190 Ga. 689, 10 S.E.2d 375(1940). 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 the owner’s exclusive rights. (O.C.G.A. Section 22-1-5).

37.2 Title Examination for Condemnor or Person Exercising Condemnation Right

Title examination, opinion and certificate of title to the condemnor or the entity exercising the right of eminent domain does not differ in theory from contracts of title examination for any purchaser. However, the consequences of failing to report a record owner of any interest in subject property (including owners of leaseholds of record, lien holders and owners of uncanceled judgments) can have extensive remedial consequences due to condemnor’s failure to serve said parties as a result of the title examiner’s negligence.

37.3 The Right of Eminent domain is Statutory in Nature Involving Statutory Civil Procedure

The right of eminent domain is set forth in Chapter 22 of O.C.G.A. and is constitutionally and legislatively authorized. The title attorney should examine all court condemnation proceeding documents for proper service upon all parties, and look for all procedural requirements of the particular eminent domain proceeding elected to be followed by the condemnor under the Code.

37.4 Rights of Reversion in Condemnee or Successors in Title to Condemnee

Many condemnation proceedings have reversion rights of fee simple title to the land from which same was taken once the condemnor’s use has been abandoned or extinguished. These are set forth in the particular condemnation proceedings or in the deeds from condemnees to condemnors and are usually in the granting and habendum clauses of said deeds.

Some forms of condemnation, namely the original form of condemnation, vested title in the condemnor for only so long as the public use was continued. This method is still Georgia law in O.C.G.A. Section 22-2-85. The Code Section states that upon condemnor’s ceasing to use the property for the purposes of condemnor’s business, the property shall revert to the person from whom taken, his heirs or assigns. There are exceptions to this rule and most condemnor now follow a condemnation method in which they obtain fee simple title to said property exclusive of reversion upon non-use.

Comment: Where a grantor made to a railroad company a warranty deed conveying only an easement or right-of-way, due to conditions of reversion on abandonment in the habendum clause, neither the grantee in a successor railway company deed nor the railway company itself had any title or interest which it could convey after it had abandoned its easement obtained by condemnation. Byrd v. Goodman, 195 Ga. 621, 25 S.E.2d 34 (1943).

37.5 Just Compensation Awarded in the Form of Future Uses

The examining attorney should read the condemnation decrees in detail in that just compensation of money could be low due to contracts for condemnee to have rights for future benefits, such as utility hook up, sewage access, curb cuts or other access from the property remaining in said owner’s possession after condemnation, plus the right in and to retaining walls or property line fencing.

37.6 Rights Lost to the Property Remaining after Condemnation Paid for as Consequential Damages

In reading plats of record subsequent to condemnation and condemnation proceedings, the title examiner should be aware of remaining property access rights, new building lines for construction of improvements, limitation of air or mineral rights to remaining property and temporary or permanent construction or maintenance easements, and flood easements.

37.7 Condemnation of Air Rights by Government Condemnor

Full ownership of real property includes owning not only the land and it improvements and fixtures thereon, but all the appurtenances thereto (easements serving said property) and also extends downward and upward indefinitely. (O.C.G.A. Section 441-2). Upward limits of ownership do not extend above an altitude representing the reasonable possibility of a man’s occupation and dominion and legality of flight over such lands can be the subject of condemnation or right of eminent domain by government authorities. All properties near airports should be carefully examined for the taking of air rights over said properties which would govern the height of any trees or buildings constructed thereon.

37.8 Condemnation of Rights Less Than Fee Simple Title Rights in Addition to Air Rights

Many condemnor have power to condemn temporary construction easements, permanent construction easements, temporary flood easements and permanent flood easements in the taking. Any reference to such easement takings will appear in the court decree or deed from the condemnee, who will have been compensated justly therefor, and such takings will be a future right of the condemnor upon the remaining land of the condemnee.

37.9 Property Exempt from Condemnation or Eminent Domain Laws of Georgia

Georgia law exempts from the exercise of eminent domain by a person operating, constructing or preparing to construct a plant for generating electricity, all cotton mills, factories, or any plant engaged in furnishing electric power to the public. This does not exempt condemnation by governments. (O.C.G.A. Section 22-3-20 and 22-3-22). Comment: All other properties appear to be subject to condemnation. Municipal property may be condemned by the Federal government.

37.10 Property Conveyed from Condemnor to Private Individuals

Conveyances from condemnors to private parties are based upon corporate resolutions or governing authority resolutions that said property is surplus property as to the use intended by the condemnor and that the use thereof is considered abandoned. This can also be set forth in a quitclaim deed from the condemnor. The method of discontinuing a county road is prescribed by statute, O.C.G.A. Section 32-7-2.

The governing authority of a county must determine that all or any part of a road has ceased to be used by the public so as to no longer serve any substantial useful purpose, and a certification must be recorded on the minutes with a plat of the road after notice to property owners located thereon.

The procedure for the disposition of property of a county or a municipality that has been condemned and acquired for public road purposes must follow the procedures set forth by O.C.G.A. Sections 32-7-3 and -4. This procedure requires public notice by advertisement in the newspapers or other county legal publications and must be offered to the owner of the property at the time of the acquisition. If said owner has subsequently sold said property, then the same must be offered to the owner of the abutting land holding title through the owner from whom the condemnor acquired the property.

37.11 Adverse Possession Cannot Be Obtained Against Certain Condemnors

Adverse possession or title by prescription does not run against the state nor any property owned by the state or subsidiaries of the state, whether same is used for governmental or for proprietary purposes.

Comment: See: O.C.G.A. Section 44-5-163; Grand Lodge of Ga. IOOF v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970). This has been extended to include a county, a municipal corporation or any public corporation created by the state or the United States as to property held for public purposes.

37.12 Condemnation — Plats Involved

Plats involved in the condemnation proceedings, or referred to in conveyances of record, should be carefully examined in that they alone could show important easements reserved across remaining property and other matters not shown in the general conveyance description.