Taylor v. Georgia Power Co.

222 S.E.2d 869, 137 Ga. App. 44, 1975 Ga. App. LEXIS 1202

• Court: Court of Appeals of Georgia
• Decided: November 26, 1975
• Docket: 51448
• Status: Published

Opinions

Deen, Presiding Judge.

Taylor owned land one side of which was contiguous to a railroad right of way. Georgia Power Company initiated a proceeding to condemn an easement for a telephone line parallel to the railroad tracks. A three-assessor award valued the condemnee’s actual and consequential damages at $51,010, based primarily on his position that the easement in large part destroyed the value of the condemnee’s remaining land by denying it access to the railroad. The condemnor then appealed to the Superior Court of Spalding County and, prior to trial, amended its original notice of condemnation by placing the duty on the condemnor, at its own expense, to move and relocate any poles or lines which might in the future be necessary to allow the construction of a railroad spur or side track onto the remaining property. The allowance of the amendment was held in Taylor v. Ga. Power Co., 129 Ga. App. 89 (198 SE2d 701) not to be objectionable as a dismissal of a part of the interest sought, but its effect was only "to limit the condemnor’s use of the land condemned” and an amendment is proper "where its allowance does not adversely and substantially affect the condemnee’s rights.”

The condemnee then sought to amend his petition by adding a defense to the effect that he had sought such a limitation of interest in the first instance; that the condemnor had refused to grant it unless he accepted the condemnor’s valuation of the property, and that this action plus the present amendment, after he had been put to great trouble and expense to defend against the unrestricted easement, was in bad faith and entitled him to attorney fees. This defense was stricken, and, after verdict and judgment, is enumerated as error. Held:

1. The fact that the unrestricted easement plus consequential damages was valued by three assessors at $51,010 whereas the restricted easement was valued by the jury at $3,000 plus no consequential damages is very good evidence that, in spite of our former decision, the effect of the condemnor’s amendment restricting the purposes of its easement did indeed substantially affect the relative rights of the parties. Additionally, the circumstances set out in the stricken defense are amply sufficient to raise a jury issue as to bad faith on the part of the condemnor.

Nevertheless, as an intermediate appellate court bound by the decisions of the Supreme Court, we have no option but to affirm. It has been held since Streyer v. Georgia S. & F. R. Co., 90 Ga. 56 (1) (15 SE 637) that the burden of proof is on the condemnor to show damages, with a correlative right to open and conclude the argument. The effect of this is to make it a plaintiff and the condemnee a defendant. Ga. Power Co. v. Brooks, 207 Ga. 406 (4), 411 (62 SE2d 183); State Hwy. Bd. of Ga. v. Shierling, 51 Ga. App. 935 (3) (181 SE 885).

If the condemnee is in fact a defendant, then he is precluded from obtaining attorney fees under the provisions of Code § 20-1404 which applies only to plaintiffs where the defendant is in bad faith. "A defendant cannot avail himself of the provisions of Code § 20-1404, which provides as follows: 'The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.’ ” King v. Pate, 215 Ga. 593, 596 (112 SE2d 589). In view of these Supreme Court decisions we are unable to hold, as we otherwise would, that the condemnee has alleged a case for jury submission on the bad faith-attorney fee issue.

The case of Pickett v. Ga., F. & A. R. Co., 98 Ga. App. 709 (106 SE2d 285) on which the appellant relies is technically not applicable because there the condemnee was the plaintiff in an injunction action, although this decision and the Supreme Court decision in 214 Ga. 263 transferring the bad faith-attorney fee issue to this court after the condemnor sought to dismiss (thus rendering everything in the injunction action except attorney fees moot) does establish that where the condemnee can leap the versus barrier he may in a proper case, where the condemnor has proceeded in bad faith, recover his expenses of litigation. But even in Pickett the attorney fees sought were for prosecuting the injunction suit, not for defending against the eminent domain action.

2. The requested instructions which the judge failed to give to the jury were inapplicable after the issue of access to the railroad had been eliminated. No reversible error appears.

Argued October 30, 1975 Decided November 26, 1975 Rehearing denied December 11, 1975 Seay & Sims, Marshall R. Sims, for appellant. Beck, Goddard, Owen & Murray, J. C. Owen, Jr., Samuel A. Murray, for appellee.

Judgment affirmed.

Evans, J., concurs specially. Stolz, J., concurs in the judgment only.