Miller v. State Highway Department

Supreme Court of Georgia1946-02-20No. No. 15401

200 Ga. 485

Summary · law.co

Holding. The judgment was affirmed. The state highway department's condemnation proceedings were valid because adequate preliminary negotiations were undertaken by the county authority, and the department's discretionary decision regarding highway relocation was not shown to be arbitrary or an abuse of discretion.

Miller challenged a state highway condemnation proceeding for property needed on a route from Lumpkin to Preston. Miller alleged that the State Highway Department had never made an offer to purchase his land. The court found that preliminary negotiations were conducted by the Stewart County commissioner, who explicitly stated to Miller his willingness to pay a fair price if they could agree or submit to arbitration. Miller rejected both options, saying he did not want the road at that location. This constituted sufficient compliance with statutory requirements that the condemner make a good-faith effort to reach agreement on price before initiating condemnation proceedings.

Miller also challenged whether the particular route through Richland on Nicholson Street had been properly authorized and approved by the State Highway Department. Because Miller did not raise this question in his original petition to the trial court, he was barred from raising it for the first time on appeal. Additionally, even if the question had been properly preserved, the evidence supported the trial judge's determination that the State Highway Department's relocation decision was not arbitrary or an abuse of its discretionary authority.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether preliminary negotiations between condemner and property owner satisfy statutory requirements before condemnation
Role of county authorities in negotiating for state-aid road rights of way
Scope of judicial review of state highway department's discretionary relocation decisions
Preservation of arguments on appeal

Procedural posture

The case was heard on appeal from a trial court judgment upholding the state highway department's condemnation of the plaintiff's property.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Head, Justice.

1. In the condemnation of property for public road purposes under the Code, Chapters 36-1 to 36-6, inclusive, it is necessary, preliminary to the commencement of the proceedings, for the condemnor to make an effort to agree with the owner of the property upon the price to be paid for the land. Code, §§ 36-302, 36-303; City of Elberton v. Hobbs, 121 Ga. 750 (49 S. E. 780); Bridwell v. Gate City Terminal Co., 127 Ga. 520 (8), 535 (56 S. E. 624, 10 L. R. A. (N. S.) 909); Piedmont Mills v. Ga. Ry. & Elec. Co., 131 Ga. 137 (4) (62 S. E. 52); City of Atlanta v. Austell, 146 Ga. 456 (91 S. E. 478). Where, as in this case, the plaintiff alleges that neither the State Highway Department, nor any one for it, has offered to pay him for his property, such allegation is insufficient to disclaim proper negotiations for the right of way sought to be condemned. Under the Code, § 95-1721, it is made the duty of the proper county authorities to assist in procuring rights of way for State-aid roads and to pay for the same out of the county treasury. Therefore negotiations by such county authority, in an effort to agree with the owner of the property to be taken, are not only authorized but required under the section cited. It is shown by the evidence of the sole commissioner of Stewart County that he stated to the plaintiff that he “wanted to pay him the purchase-price, if they could agree on it or leave it to arbitration,” and the plaintiff replied that he “did not want either one and would not do either one, that he did not want the road at this place.” The requirement that the condemnor make an effort to agree with the property owner upon the price to be paid was sufficiently complied with by the action of the county commissioner as above set forth, and it was not necessary that any representative of the State Highway Department negotiate with the plaintiff further before the filing of condemnation proceedings.

No. 15401.

February 20, 1946.

Rehearing denied March 5, 1946.

2. The plaintiff in error alleged in his petition -that, tb-fti route- from Lump-kin to Preston through Richland was. a State-aid road. , The State Highway Department under the Code, § 95-1708, has the right to resurvey and relocate in their entirety any or all of the State-aid roads, keeping in view only the control points, which in this • instance are indisputably the same. Since the plaintiff in error, however, did not raise the question in his petition that the route through Richland on Nicholson Street had not been duly authorized, relocated, and approved by the State Highway Department, he can not raise the question for the first time in his bill of exceptions. Other questions not raised by the plaintiff’s petition and not passed on by the trial court, but raised for the first time by the bill of exceptions, can not be considered by this court.

3. “A court of equity will not interfere with the discretionary action of the State Highway Department in locating, grading, and improving a proposed State-aid highway, Within the sphere of their legally designated powers, unless such action is arbitrary and amounts to an abuse of discretion.” Crump v. State Highway Department, 191 Ga. 130 (12 S. E. 2d, 310), and cases cited. The evidence authorized a finding by the trial judge that, the action of the State Highway Department in the relocation ■ of the highway from Lumpkin in Stewart County, through Richland, to Preston in Webster .County, was not an abuse of its discretionary powers.

Judgment affirmed.

All the Justices concur.

Dykes & Dykes, for plaintiff.

Eugene Cook, Attorney-General, G. Y. Harrell, R. 8. Wimberly, áhd L. C. Groves, Assistant Attorney-General, for defendant.