Champion v. City of Atlanta

Court of Appeals of Georgia

Champion v. City of Atlanta

267 S.E.2d 821, 154 Ga. App. 95, 1980 Ga. App. LEXIS 2052

CourtCourt of Appeals of Georgia

DecidedMarch 20, 1980

Docket56640

StatusPublished

This text of 267 S.E.2d 821 (Champion v. City of Atlanta) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Champion v. City of Atlanta, 267 S.E.2d 821, 154 Ga. App. 95, 1980 Ga. App. LEXIS 2052 (Ga. Ct. App. 1980).

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Opinion

Smith, Judge.

On certiorari to the Supreme Court, this case was reversed. Therefore, Heirs of Champion v. City of Atlanta, 149 Ga. App. 470 (254 SE2d 706) (1979), is vacated and the decision of the Supreme Court in City of Atlanta v. Heirs of Champion, 244 Ga. 620 (261 SE2d 343) (1979), is adopted as the decision of this court.

The majority in the Supreme Court, in reversing the Court of Appeals, stated that the necessity for the taking of the fee in the condemnation case cannot be interfered with unless the condemnor acted in bad faith or beyond the powers conferred upon it by law. To this we agree. The majority also held that the Court of Appeals improperly acted as a fact finder. The only way that it can be determined whether or not the condemnor acted in bad faith or beyond the powers conferred upon it by law is for the court to look at the facts. And, if the facts do not sustain that well known principle of law that the condemnor is taking only enough of the fee to carry out the purpose for which it was created, then it is an unconstitutional taking. The courts would never be able to say that a condemnor was guilty of an unconstitutional taking if it was not allowed to look to the facts the condemnor used to justify the taking. The majority looked at the facts when it stated that the evidence sustained MARTA’s position as to the necessity of the taking. However, this same majority would deny the Court of Appeals the same privilege, i. e. to look to the evidence to see if it is sufficient to authorize a constitutional taking of the air rights that are not necessary to the operation of their rapid transit system. If the latter were true then there would be no need in appealing a condemnation case dealing with an unconstitutional taking. This is true inasmuch as the Court of Appeals could never determine the constitutionality of a taking if the court could not look at the evidence upon which the taking was based.

Judgment affirmed.

Deen, C. J., and Banke, J., concur.

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Smith, Judge.

On certiorari to the Supreme Court, this case was reversed. Therefore, Heirs of Champion v. City of Atlanta, 149 Ga. App. 470 (254 SE2d 706) (1979), is vacated and the decision of the Supreme Court in City of Atlanta v. Heirs of Champion, 244 Ga. 620 (261 SE2d 343) (1979), is adopted as the decision of this court.

The majority in the Supreme Court, in reversing the Court of Appeals, stated that the necessity for the taking of the fee in the condemnation case cannot be interfered with unless the condemnor acted in bad faith or beyond the powers conferred upon it by law. To this we agree. The majority also held that the Court of Appeals improperly acted as a fact finder. The only way that it can be determined whether or not the condemnor acted in bad faith or beyond the powers conferred upon it by law is for the court to look at the facts. And, if the facts do not sustain that well known principle of law that the condemnor is taking only enough of the fee to carry out the purpose for which it was created, then it is an unconstitutional taking. The courts would never be able to say that a condemnor was guilty of an unconstitutional taking if it was not allowed to look to the facts the condemnor used to justify the taking. The majority looked at the facts when it stated that the evidence sustained MARTA’s position as to the necessity of the taking. However, this same majority would deny the Court of Appeals the same privilege, i. e. to look to the evidence to see if it is sufficient to authorize a constitutional taking of the air rights that are not necessary to the operation of their rapid transit system. If the latter were true then there would be no need in appealing a condemnation case dealing with an unconstitutional taking. This is true inasmuch as the Court of Appeals could never determine the constitutionality of a taking if the court could not look at the evidence upon which the taking was based.

Judgment affirmed.

Deen, C. J., and Banke, J., concur.

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Bluebook (online)

267 S.E.2d 821, 154 Ga. App. 95, 1980 Ga. App. LEXIS 2052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/champion-v-city-of-atlanta-gactapp-1980.

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