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Condemnation of land. Fulton Superior Court. Before Judge Emeritus Moore.
EVANS, Judge.
1. After the award of the appraisers, a condemnation proceeding cannot be dismissed by the condemnor.
This case involves a condemnation proceeding in rem by the Housing Authority of the City of Atlanta, Georgia, against the property of William Thomas Mercer. The Housing Authority, as condemnor, filed its petition in the Superior Court of Fulton County, Georgia, to condemn said lands, the petition reciting the enactment of the foregoing resolutions by the City of Atlanta, and specifically alleging as follows: "5. Petitioner deems it necessary for its purposes under the Urban Redevelopment Law (Ga. Laws of 1955, p. 354 et seq.) that the real property hereinafter more particularly described be acquired, and petitioner has adopted a resolution declaring that the acquisition of said real property is necessary for such purposes . . . 9. Petitioner stands ready to pay just and adequate compensation for said property . . . 13. Pursuant to the provisions of said law and by virtue of the facts herein before set out, petitioner is authorized and empowered to condemn and acquire fee simple title to the above described property to be used in carrying out said urban redevelopment project."
The prayers of the petition, among others, included the following: "(e) That assessors be appointed in accordance with Sec. 36-1109 of the 1933 Code of Ga. Ann., and that such assessors be ordered to make an award in accordance with Chap. 36-5 of the 1933 Code of Ga. Ann.; (f) That upon payment of such award into the registry of the court, petitioner have judgment of condemnation of the land described herein, and that the court decree and adjudge that fee simple title to said land, free of all liens and encumbrances, vest in petitioner."
All necessary prayers for making parties and service were also included, and a rule nisi requiring Mercer, the alleged owner, and others, to appear at a hearing for the purpose of assessing the value of the property was regularly issued by a Judge of the Superior Court of the Atlanta Judicial Circuit, and service was made. The appointed assessors made a determination as to the value of the property of the condemnee, and two of the three assessors signed the award and the original thereof was placed in the hands of the attorney for the condemnor for filing in the office of the clerk of the superior court. Said attorney for the condemnor advised the attorney for the condemnee, Mercer, on at least two occasions that the award would be filed within 10 days of the rendition thereof, and that the amount of the award would be simultaneously paid into court. However, instead of condemnor's counsel complying with his statement as to filing, etc., he attempted to dismiss the proceedings, and as soon as the attorney for condemnee learned of such attempt, the condemnee and the assessors filed a true copy of the award with the clerk of the superior court, in compliance with the mandatory language of Code 36-508. Attorney for the condemnee then moved the court to enter judgment on the award. A hearing was ordered at which evidence was presented by the condemnor to the effect that after the award had been made, condemnor determined that the property was not needed for any public purpose, and that its acquisition by the condemnor would constitute needless expenditure of public funds, and condemnor had directed an entry of dismissal of the action, and contended that condemnor did not have the intention of acquiring said property thereafter through voluntary or involuntary proceedings, and had no intention of initiating proceedings or negotiations leading to the acquisition of this property. The condemnee offered evidence to prove that his property had been declared to be in the Model Cities Urban Redevelopment Area more than a year earlier; that his tenant had been so notified, and was advised that she would be relocated, and that she was relocated; that the property became vacant, remained untenantable, became badly deteriorated and the condemnee had been prevented and prohibited from using his property for more than a year through its officially being declared in the Urban Renewal Development Area. He also offered evidence as to his expense as a result of the condemnation, including the expense of employment of counsel, expert witnesses, and having a survey and plat made of the property; and also offered evidence to show that his adjoining property east and west of the tract condemned suffered consequential damages as a result of the condemnation.
The court, after hearing the evidence, entered up a judgment directing the condemnor to pay the amount of the award, and provided that upon payment thereof the title to the subject property would be vested in the condemnor. The condemnor then filed two appeals, one being a direct appeal from the aforesaid judgment, with a certificate for immediate review. The court also directed the condemnor to pay an amount equal to the award into the registry of the court, which payment would serve as a supersedeas. The other appeal was to a jury in the Superior Court of Fulton County, subject to his direct appeal from the judgment aforementioned.
It is readily seen that Section 41 of the Civil Practice Act (Ga. L. 1966, pp. 609, 653; Code Ann. 81A-141 (a)) does not provide an unlimited and unfettered right if dismissal, but same is "subject to the provisions of any statute." One of the statutes to which it is subject is Code 38-114 as to estoppel, and which statute provides in pertinent part: "Presumptions of law are sometimes conclusive, and an averment to the contrary shall not be allowed. These are termed estoppels, and are not generally favored. Among these are . . . solemn admission made in judicio, and other admissions upon which other parties have acted, either to their own injury or the benefit of the person making the admissions . . . "
Specifically, with reference to estoppel, in the case of Trust Co. of Ga. v. S. & W. Cafeteria, 97 Ga. App. 268, 285 (103 SE2d 63) this court held: "A litigant having, even prior to the institution of legal proceedings, assumed and prevailed in a legal position is estopped to recede from such position after litigation is begun when detriment would thereby result to an opposite party. Cornelius v. Anderson, 25 Ga. App. 183. 184 (2a) (102 SE 925); Frank & Meyer Neckware Co. v. White, 29 Ga. App. 694 (116 SE 855); Kaufmann v. Young, 32 Ga. App. 135 (122 SE 822); Bryan Bank v. Carter, 57 Ga. App. 519 (196 SE 228); Rogers v. Miller Peanut Co., 73 Ga. App. 379 (36 SE2d 362); Carter v. Carter, 80 Ga. App. 172 (1) (55 SE2d 721)." Condemnor sought to bolster its right to dismiss by offering evidence at the hearing to the effect that it had determined the property was no longer needed, and that it had no intention of attempting to acquire same later by condemnation or negotiation. First of all, it was barred from taking a position contrary to its solemn admissions in judicio as contained in its petition for condemnation, filed in the Superior Court of Fulton County, where it solemnly asserted that it did need the property; and which was also an admission upon which condemnee had acted to his injury and damage. As to its intention not to attempt to acquire the property later on by condemnation, it was barred by law from so stating, according to the authorities we have cited herein. And as to its intention not to negotiate for acquisition of the property, it was beyond the competence if the witnesses to know what intention those in charge of this authority might have next year or ten years hence. It could, with propriety. say "Today I have no intention of ever acquiring the property"--and this would not be inconsistent with its statement next year "I now have formed an intention of acquiring the property." However, a rule of law renders this statement ineffectual because members of one city council are not allowed to tie the hinds if and build their successors in office from taking such action as they deem proper. See Code 69-202; also Horkan v. City of Moultrie, 136 Ga. 561 (71 SE 785); Barr v. City Council of Augusta, 206 Ga. 750 (3 (55 SE2d 820). And, (if course, if the entire city government (if Atlanta can not so do, it cannot accomplish this end indirectly through allowing one of its agencies, such as the city housing authority, to do so.
Here we have both solemn admissions in judicio, and admissions upon which the condemnee had acted to his own injury, which would preclude the dismissal of the proceeding, after award. To allow a dismissal under such circumstances would allow the placing if the condemnee at great disadvantage without any remedy. He had been put to expense of paying counsel, expert witnesses, having plats and surveys made; his tenant had moved away, his property had become vacant and untenantable, had deteriorated, and his adjoining lands had been damaged. It has been held that under such circumstances he has no right to bring another suit for reimbursement. See Towler v. State Hwy. Dept., 100 Ga. App. 374 (3) (111 SE2d 154). Thus, whatever remedy existed must be enforced in this proceeding. Our lawmakers have wisely provided that "For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other." Code 3-105. It follows that his remedy for his great wrong must be enforced in this proceeding, and his remedy cannot be erased through the expedient of dismissal of the condemnation proceedings after award and after being forced to act to his own injury by the solemn admissions in judicio and other admissions by condemnor upon which condemnee had acted.
It was held in Towler v. State Hwy. Dept., 100 Ga. App. 374 (1), supra, and likewise in Woodside v. City of Atlanta, 214 Ga. 75 (103 SE2d 108) that the time of "taking," where the right of eminent domain is exercised, is when the condemnor interferes with any "elemental right growing out of ownership" of the property taken. And in Hodges v. South Ga. Natural Gas Co., 111 Ga. App. 180 (2) (141 SE2d 182) it was held: "The award of the assessors, standing alone, is not the judgment of a court, since the judgment is entered up by the court based on the award, but it is in fact 'a judgment rendered by a tribunal which is competent to fix the rights and liabilities of the parties to the proceedings with reference to the matters and things involved.' Thomas v. Central of Ga. B. Co., 169 Ga 269, 271 (149 SE 884)." (Emphasis supplied.) The appraisers having made an award, the condemnor could not dismiss the condemnation proceedings.
Other cases in print are Marist Society v. City of Atlanta, 212 Ga. 115, 117 (90 SE2d 564), where it is stated: "Under the rule stated in Harrison v. State Highway Dept., 183 Ga. 290 (188 SE 455), the condemnor cannot just abandon a condemnation proceeding. Affirmative action seeking to set aside the judgment in favor of the condemnor, and the payment of all expenses accrued to the condemnee are essential to the vacating and setting aside the value of the property condemned." (Emphasis supplied.) In Harrison v. State Hwy. Dept., 183 Ga. 290, 297 (188 SE 445): "Equity certainly will not tolerate that a condemnor, who has been vested with the power of eminent domain, vested with that high right that the needs of the public may be met in certain cases, shall, after having had the benefit of a trial before assessors, take the chances of getting a lower award, in a second proceeding, by dismissing the first proceeding and refusing to enter the appeal, as the statute provides, in case he is not satisfied with the amount awarded. To allow the condemnor to do this, that is, dismiss his first proceeding after the award or judgment, would be giving him an inequitable advantage over the owner of the land--a clear and undeniable advantage in many cases." (Emphasis supplied.) Again, in Ga. Power Co. v. Fountain, 207 Ga. 361, 367 (61 SE2d 454): "The awards made in the condemnation proceedings and afterwards filed by the assessors in the office of the clerk of the superior court were judgments rendered by a competent tribunal Thomas v. Central of Georgia Ry. Co., 169 Ga. 269 (149 SE 884). The defendant, after the awards were made by the assessors, had no right to abandon the condemnation proceedings and by so doing relieve itself of liability to pay the awards; and the plaintiffs, as condemnees, were estopped to say that the assessors had no jurisdiction to make the awards. Central of Ga. R. Co. v. Thomas, 167 Ga. 110 (144 SE 739)." The court in Thomas v. Central of Ga. R. Co., 169 Ga. 269, 271 (149 SE 884), stated: "We are of the opinion that the landowner, after the finding and judgment by the assessors, had such a right in the award and the judgment that the condemnor could not by its own act destroy the effect of that award. The effect if our previous holding " 'as that the dismissal of the proceeding by the condemnor could not destroy or wipe out the award that was made; . . . The final result was a judgment, and that judgment could be got rid of only by the method provided in the statute, that is, an appeal, upon the trial of which a different result might be reached; and if no appeal was entered, the award or judgment stood."
The lower court did not err in making the award (if the assessors the order and judgment of the court; in directing the condemnor to pay the amount of the award into court, and ordering that upon the payment of the award into court the property was condemned and title vested in the condemnor
Judgment affirmed. Hall, P. J., and Deen, J., concur.
Katz, Paller & Land, Israel Katz, for appellees.
Weltner & Crumbley, Charles L. Weltner, for appellant.
Friday May 22 16:50 EDT

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