William E. Honey Business Interest, LLLP v. Georgia Power Co.

661 S.E.2d 203, 291 Ga. App. 44, 2008 Fulton County D. Rep. 1261, 2008 Ga. App. LEXIS 395

• Court: Court of Appeals of Georgia
• Decided: March 28, 2008
• Docket: A07A1962
• Status: Published

Opinions

Andrews, Presiding Judge.

William E. Honey Business Interest, LLLP (Honey) brought this action against Georgia Power Company to recover possession of a tract of land across which Georgia Power has an electric transmission line easement.¹ Georgia Power acquired the easement by condemnation in 1984, but to date has not constructed the power lines across the property. Honey sought to regain the property, contending in its complaint that Georgia Power “has lost its right-of-way condemned across the property of plaintiff by not using it for the purpose for which it was originally taken, nor for any other public purpose, for a period of more than (20) years.”²

The parties filed cross-motions for summary judgment and the trial court entered an extensive order denying Honey’s motion and granting summary judgment to Georgia Power. This appeal followed.

1. Honey contends that the trial court erred in denying its motion for summary judgment because the property should revert to it under OCGA § 22-2-85. This Code section provides:

Upon the payment by the condemnor of the amount of the award, or the amount of the final judgment if there is an appeal, the condemnor shall become vested with such interest in the property taken as may be necessary to enable the condemnor to exercise his franchise or conduct his business. Whenever the condemnor ceases using the property taken for the purpose of conducting his business, the property shall revert to the person from whom taken, his heirs or assigns.

There is no evidence in the record that Georgia Power has permanently ceased to use the easement for purposes of OCGA § 22-2-85. The easement in question is part of a projected electric transmission line from the Wallace Dam area to the Klondike substation in DeKalb County. The original plan was to build a line from Plant Vogtle to the Wallace Dam and then from the Wallace Dam to Klondike. The line from Plant Vogtle to Wallace Dam is in place, but the line from Wallace Dam to the Klondike substation has not been built, although rights-of-way, including the easement across Honey’s land, have been obtained.

The Georgia Power planning engineer testified at his deposition that building the line from Wallace Dam to Klondike had been put on hold to address other more urgent needs that have occurred. Georgia Power has projected, however, that there will be increased demands for power in the metropolitan Atlanta area and this transmission line will be needed in the future to meet these demands. The planning engineer stated that the “2020 document” was the best summary of Georgia Power’s long-term plans. That document projects where Georgia Power “need[s] to be in 2020.” In that document, the Wallace to Klondike line is projected to be constructed after 2010 and before 2020. All of the above evidence is undisputed.

The language in City of Atlanta v. Fulton County, 210 Ga. 784 (82 SE2d 850) (1954), provides a test for when and how to apply OCGA § 22-2-85. It states that the above Code section applies when the land has been (1) “abandoned” for the purposes for which it was taken, and (2) “the [condemnor] does not intend to use such land for such purposes in the future,” and (3) “the use of the condemned property in the business to be served permanently ceases” and “is not to be used for other purposes.” Id. at 786. At that point, “it reverts to the person from whom it was taken, his heirs, or assigns.” Id. Therefore, the test is not whether there has been “more than a ‘mere delay’ ” as the dissent contends, but rather whether the land has been abandoned, whether the condemnor does not intend to use the land for such purpose in the future, and whether the use of the condemned property has permanently ceased.

The record shows that Georgia Power has not “abandoned” the easement. Georgia Power has not physically abandoned the easement; it has cleared the land and has consistently maintained it since the condemnation. Georgia Power has not abandoned the easement for business purposes; the evidence is that planning is one of the most important aspects of Georgia Power’s business and this includes projecting future use and anticipating where the need for increased supply will be.

Nor is there any evidence that Georgia Power does not intend the land for future use; rather just the opposite, as discussed above. The Wallace to Klondike line is projected to be constructed after 2010 and before 2020. There is therefore no evidence that Georgia Power has “permanently cease[d]” its use of the land. See City of Atlanta, supra.

As the dissent points out, the legislature has subsequently enacted OCGA §§ 22-3-162 and 22-1-2 (c) (1). These statutes are inapplicable to this case and were not in place when Georgia Power acquired the easement or when it began long-term planning for construction of the easement. Therefore, the trial court correctly granted summary judgment to Georgia Power on this claim.

2. Honey also contends that the trial court erred in granting summary judgment to Georgia Power because there is an issue of fact as to whether Georgia Power “abandoned” the easement. In light of our holding in Division 1 above finding no evidence that Georgia Power has abandoned the easement, we need not address its enumeration.

Judgment affirmed.

Johnson, P. J., Miller, Phipps and Mikell, JJ., concur. Barnes, C. J., and Adams, J., dissent.

1 The easement encompasses approximately 33.4 acres of land.

2 Honey filed his complaint in June 2005.