Court: Court of Appeals of Georgia; January 6, 2014; Georgia; State Appellate Court
Gerald W. Emery appeals the denial of his petition to set aside a declaration of taking by Chattooga County, Georgia, which pertains to a 60-foot ingress and egress easement across an unpaved road on Emery's property. This easement provides access to approximately 20 residents along Hairs Lake Road. The County initiated the taking under OCGA 32-3-1, following requests from neighboring property owners to convert the road into part of the county road system, which involves paving and maintenance by the County.
Emery's petition to set aside the taking was denied after multiple amendments and a hearing. The relevant statute allows for the condemnation of property for public road purposes, including rights of way. The County’s declaration specified that the easement would serve to establish a public road right-of-way for construction, maintenance, and repair.
Under OCGA 32-3-11, a superior court may annul a declaration of taking only under specific circumstances, with a presumption that the condemned property is necessary for public use. Emery bears the burden of proof to demonstrate that the taking should be overturned. He contends that the County misused its discretion, arguing that the condemnation served private interests rather than public purposes and was not aligned with the development of public roads.
Although it was acknowledged that the road primarily serves the local residents and may not be frequently used by the general public, there is no evidence excluding public access. The legal principle asserts that if the public has a right to use the road, it is deemed public, regardless of the frequency of use. Conversely, if the road is exclusively for private use, eminent domain cannot be exercised for that purpose. The court ultimately affirmed the trial court's decision, upholding the County's declaration of taking.
The general public's usage of a road does not determine the legality of its condemnation. In Austin Enterprises v. DeKalb County, it was noted that the fire chief had approached the County regarding the acquisition of the road after responding to a fire, indicating that paving and maintaining the road would benefit emergency responders. The County's decision to condemn the property aligned with its policy to acquire and improve roads in developing areas at residents' requests. Consequently, the court found no evidence of bad faith or abuse of discretion in the County's actions, affirming the superior court's decision not to set aside the condemnation under OCGA 32-3-11. The original denial of Emery's petition on November 1, 2012, was followed by an appeal notice on November 19, after which the County sought to dismiss the appeal due to pending jury trial demands on property value. The superior court subsequently vacated its denial, and Emery dismissed his value challenge with prejudice. A new denial order was issued on April 1, 2013, which Emery appealed in a timely manner, confirming jurisdiction over the appeal. Emery's argument, referencing Brannen v. Bulloch County, posits that public interest is compromised if the condemnation primarily benefits private entities. However, the court clarified that Brannen's ruling is confined to its specific extreme circumstances, as established in Back v. City of Warner Robins.
