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Inverse Condemnation in Georgia

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Most mid level marketers of petroleum products have had property taken through condemnation or eminent domain proceedings. Generally, this occurs when the Georgia Department of Transportation, a county or municipality needs property to improve an existing transportation system.

The Constitution of Georgia and the Constitution of the United States provide that private property may be acquired for public purposes. In return for the property taken, you are entitled to receive fair market value for your property. Market value is understood to mean the price, which a property would bring in a competitive, and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably. Georgia law specifically provides for condemnation suits under eminent domain proceedings. These suits are generally filed in the Superior Court of the county in which the property is located. The most common method employed is a "declaration of taking" which involves the filing of a petition and deposit of an estimate of just compensation. Upon the filing and deposit, title passes to the taking entity. Any dispute or litigation in this proceeding is usually over the issue of "just compensation".

There are occasions where the state, county or municipality inadvertently or through its acts or omissions take property but do not use condemnation proceedings or the exercise of eminent domain. In such cases, if the public authority does not proceed directly to condemn, the injured citizen has a right to compensation under the state constitution. The cause of action available is known as an "action for inverse condemnation". The Constitution of Georgia, article I, Section 3, Paragraph 1(a), establishes that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. Pursuant to O.C.G.A. § 22-1-5, 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 his exclusive rights. A compensable taking is not confined to the taking of the entire fee, nor does it necessarily consist of a physical invasion of the property. See generally, Dougherty County v. Hornsby, 213 Ga. 114 (1957).

In the course of marketer's business, inverse condemnation cases often arise when there occurs a taking, relocation or interference with curbs, curb cuts and/or the right to ingress and egress to property along a public road or street. Generally, in order to be compensable, the injury resulting from a taking must be peculiar to the complained owner or occupant, a distinguished from an injury experienced to the general public. It has been held that the owner of property abutting a public road has right to ingress and egress, which does not belong to the public in general. That the owner of land abutting the public road is not per say entitled to access to the owner's property at all points on the boundary between the property and the road, but where the owner's easement of access has been interfered with, the owner must be offered a convenient access to the owner's property and the improvements thereon and the means of ingress and egress must not be substantially interfered with.

Where there has been a substantial interference with access to property, the measure of damages is any reduction in the market value of property by such interference. The Supreme Court held in the case of The Department of Transportation v. Whitehead, 253 Ga. 150 (1984), that where there has been a taking of the easement of the right of egress from and ingress to the abutting public road, the property owner is entitled to just and adequate compensation. That a jury in determining the amount of compensation should consider whether the owner has any alternate access and should compensate the property owner for the depravation of access in a manner which takes cognizance of the inconvenience and circuitry of travel created by the taking of the easement. That any inconvenience is clearly a consideration affecting the value of the property and such damages resulting from inconvenience based upon the elimination of his easement of access is special and not the same as that suffered by the public in general.

There are statutes, which provide specific periods of limitation for actions against governmental entities and require certain notices be provided prior to pursuing actions against governmental entities. In this regard, it is important that any claims against a local, county or state governmental entity be handled, considered, and pursued promptly and diligently.

Steve Mills is the managing partner in the law firm of Mills & Hoopes, LLC, in Lawrenceville, Georgia. For more information on our legal services or your legal needs in areas such as contractual matters, litigation, commercial real estate, immigration, environmental matters, wills, divorce and family matters, personal injury, collections, small claims, landlord tenant or any criminal matters, please visit out website www.millshoopeslaw.com 

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