---
title: Ga. Const. Art. I, Sec. III, Para. I. Eminent domain.
collection: code
id: ga-const:art-i-sec-iii-para-i
cite_as: Ga. Const. Art. I, Sec. III, Para. I
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# Ga. Const. Art. I, Sec. III, Para. I. Eminent domain.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

(a) Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.

(b) When private property is taken or damaged by the state or the counties or municipalities of the state for public road or street purposes, or for public transportation purposes, or for any other public purposes as determined by the General Assembly, just and adequate compensation therefor need not be paid until the same has been finally fixed and determined as provided by law; but such just and adequate compensation shall then be paid in preference to all other obligations except bonded indebtedness.

(c) The General Assembly may by law require the condemnor to make prepayment against adequate compensation as a condition precedent to the exercise of the right of eminent domain and provide for the disbursement of the same to the end that the rights and equities of the property owner, lien holders, and the state and its subdivisions may be protected.

(d) The General Assembly may provide by law for the payment by the condemnor of reasonable expenses, including attorney’s fees, incurred by the condemnee in determining just and adequate compensation.

(e) Notwithstanding any other provision of the Constitution, the General Assembly may provide by law for relocation assistance and payments to persons displaced through the exercise of the power of eminent domain or because of public projects or programs; and the powers of taxation may be exercised and public funds expended in furtherance thereof.

## Cross References

Due process of law and just compensation, U.S. Const., amend. 5; Ga. Const. 1983, Art. I, Sec. I, Para. I; Ga. Const. 1983, Art. III, Sec. VI, Para. III; Ga. Const. 1983, Art. IX, Sec. II, Para. V; T. 22; T. 32, C. 3; and § 44-9-40 et seq.

## Editor's Notes

Some of the cases noted under this heading were decided prior to the 1983 Constitution, which authorizes the General Assembly to provide by law for payment of litigation expenses, including attorneys’ fees.

Paragraph does not require award of attorneys’ fees. DeKalb County v. Trustees, Decatur Lodge No. 1602, 242 Ga. 707, 251 S.E.2d 243 (1978), commented on in 31 Mercer L. Rev. 367 (1979).

Attorneys’ fees and expenses are not embraced within just compensation for land taken by eminent domain. Bowers v. Fulton County, 122 Ga. App. 45, 176 S.E.2d 219 (1970), commented on in 17 Mercer L. Rev. 471 (1966); Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1403, 67 L. Ed. 2d 372 (1981).

## Law Reviews

For article, ‘‘The Tort Liability of Municipalities in Georgia,’’ see 17 Ga. B.J. 456 (1955). For article discussing eminent domain procedure in this country, and advocating reforms focusing on a unified method for condemnation, see 11 Mercer L. Rev. 245 (1960). For article discussing federal liability for pollution abatement in condemnation actions, see 17 Mercer L. Rev. 364 (1966). For article, ‘‘Eminent Domain, Police Power and Urban Renewal: Compensation for Interim Depreciation in Land Values,’’ see 7 Ga. L. Rev. 226 (1972). For article discussing this paragraph as a bar to zoning regulations, and advocating the use by the Supreme Court of a balancing analysis in ruling on zoning regulations, see 10 Ga. L. Rev. 53 (1975). For article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978). For article surveying recent legislative and judicial developments in zoning, planning and environmental law, see 31 Mercer L. Rev. 89 (1979). For article surveying recent legislative and judicial developments in Georgia’s real property laws, see 31 Mercer L. Rev. 187 (1979). For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982). For annual survey on real property, see 36 Mercer L. Rev. 285 (1984). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986). For article, ‘‘Condemning Local Government Condemnation,’’ see 39 Mercer L. Rev. 11 (1987). For article, ‘‘A Critical Review of the Law of Business Loss Claims in Georgia Eminent Domain Jurisprudence,’’ see 51 Mercer L. Rev. 11 (1999). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For article, ‘‘Federalization of the Mosquito: Structural Innovation in the New Deal Administrative State,’’ see 60 Emory L.J. 325 (2010).

For note, ‘‘Annexation by Municipalities in Georgia,’’ see 2 Mercer L. Rev. 423 (1951). For note on computation of compensation for condemned lands where value is enhanced by announcement of proposed improvement, see 15 Mercer L. Rev. 488 (1964). For note, ‘‘A Study of the Development and Current Status in Georgia of Inverse Condemnation Suits by a Landowner for Taking by Aerial Flights,’’ see 2 Ga. St. B.J. 232 (1965). For note discussing meaning of ‘‘public use’’ and analyzing theories of excess condemnation, see 18 Mercer L. Rev. 274 (1966). For note discussing sonic boom damage as governmental taking of property for public use without just compensation, see 2 Ga. L. Rev. 83 (1967). For note, ‘‘Regulation and Ownership of the Marshlands: The Georgia Marshlands Act,’’ see 5 Ga. L. Rev. 563 (1971). For note discussing airport noise as a taking, given in the absence of direct overflight, see 10 Ga. L. Rev. 218 (1975). For note analyzing sovereign immunity in Georgia and proposing implementation of a waiver scheme and creation of a court of claims pursuant to Ga. Const., Art. VI, Sec. V, Para. I, see 27 Emory L.J. 717 (1978). For note, ‘‘Have They Gone ‘Too Far’? An Evaluation and Comparison of 1995 State Takings Legislation,’’ see 30 Ga. L. Rev. 1061 (1996).

For comment on City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953), see 5 Mercer L. Rev. 323 (1954). For comment on City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953), see 17 Ga. B.J. 117 (1954). For comment on State Hwy. Dep’t v. Thomas, 106 Ga. App. 849, 128 S.E.2d 520 (1962), see 14 Mercer L. Rev. 447 (1963). For comment on Tift County v. Smith, 107 Ga. App. 140, 129 S.E.2d 172 (1962), rev’d on appeal, 219 Ga. 68, 131 S.E.2d 527 (1963), see 26 Ga. B.J. 195 (1963). For comment on Hard v. Housing Auth., 219 Ga. 74, 132 S.E.2d 25 (1963), see 26 Ga. B.J. 349 (1964). For comment on Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966), see 17 Mercer L. Rev. 471 (1966). For comment on Calhoun v. State Hwy. Dep’t, 223 Ga. 65, 153 S.E.2d 418 (1967), answer conformed to, 115 Ga. 152, 154 S.E.2d 37 (1967), see 18 Mercer L. Rev. 475 (1967). For comment on State Hwy. Dep’t v. Owens, 120 Ga. App. 647, 171 S.E.2d 770 (1969), see 22 Mercer L. Rev. 616 (1971). For comment on DeKalb County v. Trustees, Decatur Lodge No. 1602, 242 Ga. 707, 251 S.E.2d 243 (1978), see 31 Mercer L. Rev. 367 (1979). For comment on Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16 (1978), cert. denied, 440 U.S. 936, 99 S. Ct. 1281, 59 L. Ed. 2d 494 (1979), see 31 Mercer L. Rev. 375 (1979). For comment, ‘‘Just Compensation for Temporary Regulatory Takings: A Discussion of Factors Influencing Damage Awards,’’ see 35 Emory L.J. 729 (1986).

## 1976 Constitution.

Art. I, Sec. III, Para. I.

## Paragraph to Be Liberally con-Paragraph Too Plain to Be Misunparamount to All Legislative enact-Sovereign Immunity.

The legislature’s and the judiciary’s establishment and adherence to the rule of sovereign immunity is not a ‘‘taking’’ of property rights required to be compensated. Tyson v. Board of Regents, 212 Ga. App. 550, 442 S.E.2d 9 (1994).

## Effect of Sovereign Immunity.

Since the recovery of just and adequate compensation for private property which is taken for public purposes is itself an express constitutional right, sovereign immunity is not a viable bar to an action to enforce that right. State Bd. of Educ. v. Drury, 263 Ga. 429, 437 S.E.2d 290 (1993).

Action for value of private property taken or damaged for public purpose is not, in ordinary parlance, either tort or contract; it is simply a constitutional right which the citizen may not be denied. C.F.I. Constr. Co. v. Board of Regents of Univ. Sys., 145 Ga. App. 471, 243 S.E.2d 700, cert. dismissed, 242 Ga. 96, 249 S.E.2d 613 (1978).

In statutory proceeding where a person may be deprived of property,

## Statute Must Be Strictly Pursued.

Marist Soc’y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955).

## Property Interest Required.

Teachers who were denied renewable teaching certificates under invalidly promulgated regulations were not entitled to recover damages under the taking provision of the state Constitution, since they did not have a property interest in renewable teaching certificates that were never issued to them. State Bd. of Educ. v. Drury, 263 Ga. 429, 437 S.E.2d 290 (1993).

Exhausting state procedures as prerequisite to Fifth Amendment

## Claim.

When the plaintiff failed to file an inverse condemnation claim in the state court and when the federal court had not ruled on the inverse condemnation claim the plaintiff filed therein, the plaintiff’s Fifth Amendment takings claim was not ripe for adjudication. Speer v. Miller, 864 F. Supp. 1294 (N.D. Ga. 1994).

In an action in which the plaintiff landowners filed suit against the defendant county alleging a taking under the Fifth Amendment, and inverse condemnation under Ga. Const. 1983, Art. I, Sec. III, Para. 1, in connection with the county’s recreational development of its adjoining property, because the landowners had failed to avail themselves of Georgia’s inverse condemnation procedure, the Fifth Amendment takings claim was premature, and the county motion for partial judgment on the pleadings was granted. Carney v. Gordon County, No. 4:06-CV-36-RLV, 2006 U.S. Dist. LEXIS 82634 (N.D. Ga. Sept. 12, 2006).

## When Statutory Remedy Not Exclusive.

When the statutory remedy, however broad it may be, cannot be initiated by the owner of the land, and the condemner alone can put it into operation but fails to do so, the statutory remedy is not exclusive, and the owner may resort to an action at common law. To construe the statute otherwise would render it unconstitutional. Housing Auth. v. Savannah Iron & Wire Works, Inc., 90 Ga. App. 150, 82 S.E.2d 244 (1954). tion of action to recover damages for taking and injuring private property for public use, and the mere fact that the Constitution, under this paragraph, forbids such injury to or taking of private property without just and adequate compensation being first paid therefor in nowise makes a constitutional question for decision by such court. Mayor of Athens v. Gamma Delta Chapter House Corp., 208 Ga. 392, 67 S.E.2d 111 (1951).

The term ‘‘property’’ is a very comprehensive one and is used not only to signify things real and personal owned but to designate the right of ownership and that which is subject to be owned and enjoyed. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966).

The term ‘‘property’’ comprehends not only the thing possessed but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from the use. Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884 (1966).

## Supreme Court Is Without jurisdic-Role of Equity in Providing Protection.

If by mistake the constitutional General Consideration (Cont’d) protection provided for in Ga. Const. 1945, Art. I, Sec. I, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Para. II) and Ga. Const. 1945, Art. I, Sec. III, Para. I. (see now Ga. Const. 1983, Art. I, Sec. III, Para. I) is denied the citizen, and it is not voluntarily rectified, courts of equity will command its rectification. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958).

Inverse condemnation precluded

## After Condemnation Proceeding Initiated.

An inverse condemnation action cannot be maintained once a condemnation proceeding has been initiated by a condemning authority; that proceeding establishes the exclusive avenue for litigating the issue of just and adequate compensation. DOT v. Samuels, 185 Ga. App. 871, 366 S.E.2d 181, cert. denied, 185 Ga. App. 909, 366 S.E.2d 181 (1988). ry’s verdict that there was no inverse condemnation of business. See Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Auth., 168 Ga. App. 202, 308 S.E.2d 547 (1983).

## Evidence Sufficient to Support ju-Parameters of Preliminary Entry.

A prospective condemnor is not required to adhere to condemnation procedures and constitutional provisions for compensation before making a preliminary entry, although it is responsible for all damages which occur during its preliminary entry. The permissible scope of an entry for preliminary survey, inspection and appraisal is, however, necessarily limited by the constitutional restrictions on the taking and damaging of property without just compensation; a taking may not be allowed under the guise of a preliminary survey, and the right of entry does not include the right to make permanent appropriation or cause more than minimal or incidental damage to property. Oglethorpe Power Corp. v. Goss, 253 Ga. 644, 322 S.E.2d 887 (1984).

## Availability of Injunction.

Equity will grant an injunction when damages not properly tendered. Athens Term. Co. v. Athens Foundry & Mach. Works, 129 Ga. 393, 58 S.E. 891 (1907).


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