Appendix — Brown. v. Georgia Power Co.

Diane

S. K, BROWN, Plaintiff- Appellant,

Vv.

GEORGIA POWER COMPANY et al.,

Defendants- Appellees.

No. 73-3569

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

March 14, 1974.

Condemnee brought civil rights action against

condemning public utility, alleging denial of pro-

cedural due process in eminent domain proceeding

in state trial court. The United States District

Court for the Southern District of Georgia at

Augusta, Anthony A, Alaimo, J., —— F.Supp.—,

granted defendant’s motion for summary judg-

ment, and plaintiff appealed. The Court of

* Rule 18, 5th Cir., Isbell Enterprises, Inc.

v. Citizens Casualty Company of New York

et al., 5th Cir., 1970, 431 F.2d 409, Part 1.

og

App. 2

Appeals held that the proper forum for plain-

tiff’s due process complaints was state appel-

late courts.

Affirmed.

Courts 489(1)

Proper forum for condemnee’s complaints

of denial of procedural due process in eminent

domain proceeding in state trial <ourt was

state appellate courts.

Appeal from the United States District Court

for the Southern District of Georgia.

Before WISDOM, GOLDBERG and GEE, Cir-

cuit Judges.

PERCURIAM:

The judgment of the district court is affirmed

on the basis of the well-reasoned opinion below.

Brown v. Georgia Power Co., —— F.Supp. —

(S.D.Ga.1973), The proper forum for plain-

tiff’s troubling complaints of denial of proced-

ural due process in the state trial court is the

appellate courts of Georgia.

Affirmed.

1S il Ae Ah a SD a as Na eg ta sh _

OE Dan A and Che Oy debs he

atic taieitise Bilisiresin nine oy ven ice res wc hi eh

App. 3

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

App. 4

(Number and Title Omitted) (Filed Aug. 16, 1973)

Plaintiff, smarting over the condemnation

of his land by the defendant, public utility,

brings this action under the Civil Rights Act

and its jurisdictional counterparts,! claiming

that the utility, acting under color of the state

1 28 U.S.C. S 1331 provides in pertinent part:

*(a) The district courts shall have original

jurisdiction of all civil actions wherein the

matter in controversy exceeds the sum or val-

ue of $10,000, exclusive of interest and costs

and arises under the Constitution, laws, or

treaties of the United States.’’

“The district courts shall have original

jurisdiction of any civil action authorized by

law to be commenced by any person:

(3) To redress the deprivation, under color

of any State law, statute, ordinance, regulation,

custom or usage, of any right, privilege or

immunity secured by the Constitution of the

(continued on next page)

App. 9

law of Eminent Domain, deprived him of rights

secured to him by the Fifth and Fourteenth

Amendments to the United States Constitution.

Defendant moves alternatively for judg-

ment on the pleadings or summary judgment

under Fed. R. Civ. P, 12(c) thereby opposing

the question for decision here.

1 (Continued)

28 U.S.C. S 1343 provides in pertinent part:

United States or by any Act of Congress providing

for equal rights of citizens or ofall persons with-

in the jurisdiction of the United States;

(4) To recover damages or to secure equit-

able or other relief under any Act of Congress

providing for the protection of civil rights, in-

cluding the right to vote.”’

42 U.S.C. S 19823 provides:

‘*Every person who, under color of any statute,

ordinance, r2gulation, custom, or usage, of any

(continued on next page)

TEA iC AN IU NEES RIS OF ROT

App. 6

The facts in the record, which are deemed

to present-a sufficient basis for summary dis-

position of the case, are as follows:

After unsuccessful attempts at purchasing

the plaintiff’s property in Burke County, the defen-

dant a public utility, filed a condemnation action

in the Superior Court of Burke County on August

il, 1971. 2 By court order of that date, a Special

Master was appointed to receive evidence upon

the issues pursuant to Ga. Code Ann. Chapter

26-€A, A hearing was held before the Special

1 (Continued)

42 U.S.C. S 1983 provides:

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action

at law, suit in equity, or other proper pro-

ceeding for redress.’’

2 see Ga. Code Ann., Title 36, Eminent Domain.

lane a

Bisict sirens anc. a te ah Sh a a Ss i SAR ti ee SAA, ale

App. 7

Master on August 31, 1971. During the course

of that hearing, counsel for the plaintiff raised

the constitutional issue concerning the necessity

for the taking. The Special Master rejected

that argument following an evidentiary hearing

as to value. On September 2, 1971, the Special

Master filed his award and a judgment was en-

tered thereupon by the Burke County Superior

Court, On September 10, 1971, the plaintiff

filed an answer and appeal to the Superior

Court of Burke County. Subsequently, purs-

uant_ to motion of the defendant, the Burke

County Superior Court entered an order strik-

ing the answer in its entirety and all refer-

ences to constitutional issues in the appeal.

The appeal, as limited to the issue of the

amount of the award by order of the Burke

County Superior Court of April 19, 1972, was

tried on August 28, 1972. The judgment of

that trial in the amount of Seventy Thousand

Dollars ($70,000) was entered on August 29,

1973. Of that amount, the plaintiff herein has

accepted Fifty-Five Thousand Seven Hundred

Fifty Dollars ($55,750) and Fifteen Thousand

Two Hundred Sixty-Nine Dollars and Thirty-

four cents ($15,269.34) remains on deposit with

the Clerk of the Superior Court of Burke County

for the benefit of the plaintiff.

ee

App. 8

There was no appeal from this judg-

ment to the Appellate Courts of Georgia.

The plaintiff submits that he states a

cause of action under 42 U.S.C. S 1983 because

he has been deprived of his right under the

Fourteenth Amendment to the United States Con-

stitution to notice and an opportunity to be

heard on the constitutional issues raised be-

fore the Special Master. The plaintiff com-

plains that his constitutional arguments were

foreclosed by the order of the Burke County

Superior Court of April 19, 1972, for failure

of the plaintiff to except to the findings of the

Special Master before entry of judgment there-

upon. The plaintiff notes, however, that he was

foreclosed from excepting to the findings of

the Special Master because no notice thereof

was served upon him before entry of the judg-

ment thereupon. This failure of notice of the

findings of the Special Master is arguably vio-

lative of the plaintiff’s procedural due process

rights which, in the proper forum, may sub-

ject the statutory procedure utilized by the

State of Georgia to Constitutional scrutiny, fac-

ially and as applied. The proper forum in this

instance, however, should have been the App-

ellate Courts of Georgia and the failure of the

faz ii tate 4

wi Sila Ail wheat rhs as a

App. 9

plaintiff to avail himself of his opportunity

to challenge the procedure complained of by

direct attack operates to bar collateral con-

sideration of the issues upon the familiar doc-

trine of res-judicata.

The Fifth Circuit in In Re Constructors

of Florida, Inc., 349 F, 2d 595 (5 Cir. 1965),

considered the doctrine of res-judicata to em-

body two main rules which were stated at p.

599, as follows:

*‘{1) The final judgment or decree of

a court of competent jurisdiction upon

the merits concludes the parties and their

privies to the litigation, and constitutes a

bar to a new action or suit upon the same

cause of action either before the same or

any other tribunal.

‘(2) Any right, fact or matter in issue

and directly adjudicated, or necessarily

involved in the determination of an action

before a competent court in which a judg-

ment or decree has been rendered upon

the merits, is conclusively settled by

the judgment therein and cannot again

be litigated between the same parties

App. 10

and their privies, whether the claim,

demand, purpose or subject-matter of

the two suits is the same or not.”’

Thus, the res-judicata inquiry, here, concerns

wheter the plaintiff was a party to a prior

adjudication by a court of competent jurisdiction

embodied in a final judgment upon the merits

of the claims raised by the pleading herein.

The allegations sub judice state the claims

that the defendant acted ultra vires in the con-

demnation of the plaintiff’s property under color

of the law of the State of Georgia and further

caused the plaintiff to be denied procedural

due process by failing to allow time for ser-

vice of the Special Master’s findings upon the

plaintiff before seeking judgment upon said find-

ings. These claims were necessarily disposed

of by the state proceedings.

A careful analysis of the state court

record fails to reveal any consideration during

the state proceedings of the issue as to the de-

fendant’s power under Ga. Code Ann. Chapter

36-6A to condemn the plaintiff’s property in

fee simple. Such failure, however, cannot pre-

vent operation of the doctrine of res judicata

in regard to that issue. The rule is well-

ia eet bs Te? a nS

App. 11

settled that ‘‘The judgment is conclusive, not

only as to matters which were decided, but

also as to all matters which might have been

decided.’’ Clark v. Redeker, 406 F.2d 883, 885

(8 Cir. 1969), Accord Harrison v. Blooming-

field Bldg. Industries, Inc., 435 F.2d 1192 (5

Cir. 1970); Rankin v. State of Florida, 418

F.2d 482 (5 Cir. 1969), cert. denied 397 U.S.

1039. The foregoing rule is operative if the

two actions are based upon the same cause

of action. The tause of action asserted here

is the same as asserted in the condemnation

action though it was asserted defensively there

because of the peculiar procedural nature of

such proceedings. In comparing causes of aciion

upon the issue of their identity, guidance is pro-

vided by Seadboard Coast Line R.R. v. Gulf

Oil Corp., 409 F.2d 879, 881 (5 Cir. 1969):

‘‘The principle test for comparing causes

of action is whether or not the primary

right and duty, and the delict or wrong

are the same in each action.”’

The right allegedly violated is the same in both

actions; viz., the right to own and hold prop-

erty fee from unlawful ‘interference. Similar-

ly, the wrong alleged is identical; that is, the

\

\

App. 12

unconstitutional taking of the plaintiff’s property.

Thus, the court is compelled to conclude that

the theory posited for the first time here, that

the defendant acted beyond the scope of its

statutory powers in condemning the plaintiff’s

property, could have been litigated in the first

suit. The principle of res judicata prevents its

being litigated here. See Wasoff v. American

Automobile Ins. Co., 451 F.2d 767 (5 Cir. 1971),

The judgment barring this action was

rendered by the Superior Court of Burke County

on September 2, 1971. The procedure utilized

by.the defendant in obtaining that judgment is

the object of the plaintiff’s second claim herein

that he has been denied procedural due process.

By force of Georgia Law, all legal issues re-

lating to the condemnation under the special

statutory procedure established by Ga. Code Ann.

Chapter 36-6A must be raised and determined

in the Special Master proceeding. If no ex-

ceptions are taken to the Master’s findings

or no regular appeal taken from the judgment

based on his award, the only issue remaining

is that of value.’’ Nodvin v. Georgia Power Co.,

125 Ga. App. 821 (1972), The remedy for the

correction of an adverse finding by the Special

Master was perhaps best articulated by the

App. 13

Georgia Court of Appeals in Wiggins v.' City

of Macon, 120 Ga, App. 197, 199-200 (1969): |

‘‘The question naturally arises as to

the remedy available, other than the jury

appeal on valuation, for adverse rulings

or findings by the special master with

regard to such ‘other matters material

to their rights.’ In this regard the sta-

tute attempts at the outset to achieve ©

'@ more perfect conciliation between the

parties by providing for the use of ex-

perienced, competent attorneys as spec-

ial masters. But the statute provides

‘that ‘his relation and accountability to

the court shall be that of an auditor

: or master in the general practice ex-

i _. dsting in. this State.’ (Emphasis sup-

plied), Code Ann. S 36-606a. Thus

his rulings and findings are not immed-

iately final. The statute obviously con-

templates that, as with auditors, a special

master’s rulings and findings may be

excepted to in the trial, court and dis-

posed of in like manner before any award,

which is the end product of the proceeding,

is offered to. the court and a judgment

of taking is entered up based onthe award.”’

eee ee oe

Fe asics

i a hn a

i tae aT et eee ee re =

App. 14

The plaintiff herein alleges, in essence, that

the defendant by causing a final judgment to

be entered on the same day as the filing of the

findings and before notice to the plaintif’ of

said findings, deprived plaintiff of an o vpor-

tunity to preserve his Constitutional challenge,

and that such action by the defendant nas de-

nied him the right to procedural due provess

of law, guaranteed him by the United States

Constitution. This action is said to have been

taken under color of law and, therefore, ac-

tionable under 42 U.S.C. S 1983.

This is, indeed, an ingenious argument;

but its ingenuity will not avail to dispel the

bar of res judicata,

The state court’s foreclosure of the con-

stitutional issue which the plaintiff sought to

raise there is res judicata upon the merits

of the substantive issue as well as the proce-

dural question concerning the method of entry

of judgment. State courts are competent to

decide federal constitutional questions and a

state court determination upon the merits of

such issues is res judicata absent an appeal

through the state appellate system and ultim-

ately to the United States Supreme Court. The

er ee ee et re

App. 15

doctrine of res judicata is designed to fore-

close collateral attacks such as is attempted

here and to insure the integrity of judgments

rendered by courts of competent jurisdiction.

The landmark case of Angel v. Bulling-

ton, 330 U.S, 183 (1947) was a diversity action

for a deficiency arising from the sale of a

parcel of Virginia realty upon default of a note

secured by a deed of trust. The plaintiff,

Bullington, sued the defendant in the latter’s

State of North Carolina. The action was de-

murrable, however, upon the basis of a North

Carolina statute barring recovery of such de-

ficiency judgments as interpreted by the North

Carolina Supreme Court. Bullington, rather

than seeking review in the United States Su-

preme Court, filed suit for the deficiency in

the district court. Bullington obtained the jud-

gment there and the Fourth Circuit affirmed.

The Supreme Court reversed holding the federal

action to have been barred by the state judgment

upon the doctrine of res judicata. Acknow-

ledging that the allowable ‘“‘limitation of the

jurisdiction of the courts’ of a state could

present an issue of constitutional dimensions

cognizable in federal courts, the Court never-

theless felt compelled to accord res judicata

—

App. 16

effect to the North Carolina judgment because

the plaintiff, by failing to appeal that judgment

to the United States Supreme Court, had allowed

the state court to conclusively adjudicate the

federal question. The Court noted at pages

189-190:

“For the purposes of litigating the

issues in controversy in the North Ca-

rolina action, the North Carolina Supreme

Court was an intermediate tribunal. If

a litigant chooses not to continue to as-

sert his rights after an intermediate tri-

bunal has decided against him, he has

concluded his litigation as effectively as

though he had proceeded through the hi-

ghest tribunal available to him...

He forewent his right to have a higher

court, this Court, enable him to win his

chance by holding that he was right and

that the North Carolina Supreme Court

was wrong. He cannot begin all over

again in an action involving the same

issues before another forum in the same

State.’’

The absence of a specific ruling in the state

court upon the plaintiff’s claim concerning his

dort te BM

eee

Mitel aise ate tei an NORA ait Blt ob Wie MaRS RE he 2 6 QTE ee). 7 Meee

App. 17

procedural due process rights cannot alter the

res judicata effect accorded the resolution of

this issue. Although the record fails to indi-

cate that the state court specifically ruled upon

the issue, a holding adverse to the claim is

implicit in the judgment. This concept is

explained in Angel, supra, at page 190:

‘The ‘merits’ of a claim are dispo-

sed of when it is refused enforcement.

If an asserted federal claim is denied

enforcement on a professed locai ground,

but a socalled local ground which is sub-

ject to review here because it is in

fact the adjudication of a federal ques-

tion, then the ‘merits’ is relevant to

the principles of res judicata. A State

court cannot sterilize federal claims by

putting on the adjudication a local label.’’

Angel, supra, read in a vacuum cannot be dis-

positive of the issue here primarily because

of the distinguishable jurisdictional basis. As

noted by the Angel court at page 192:

‘“‘Of course, where resort is had to a

federal court not on grounds of diversity

App. 18

of citizenship but because a federal right

is claimed, the limitations upon the cou-

rts of a State do not control a federal

court sitting in the State.’’

Casting the complaint upon a civil rights ju-

risdictional basis, however, cannot operate to

avoid the thrust of Angel that conclusively liti-

gated federal questions are res judicata. In

Mertes v. Mertes, 350 F. Supp. 472 (D. Del.

1972), a state divorce action was in issue. For

the first time on appeal, the husband challenged

a Delaware statute providing for division of pro-

perty upon the constitutional guarantees of due

process and equal protection of the law. The

Delaware Supreme Court affirmed the lower

court while refusing to reach the constitutional

issue because it had not been raised in the lo-

wer court. The plaintiff then brought an action

in the federal district court basing his com-

plaint upon 42 U.S.C. S 1983, This action

was held to be barred by the doctrine of res

judicata upon the authority of Hilliard v. Com

monwealth of Pennsylvania, 308 F. Supp. 756

(W.D. Penn, 1970) and Angel, supra. The co-

urt further noted that res judicata is equally

applicable where the action is brought under

the Civil Rights Act. Accord Bricker v. Crane,

5A RRR TY TOD AEE PTE MTD A Nite ee Ge

YD iid aN eM Ne OS. AG hha

App. 19

468 F. 2d 1228, 1231 (1 Cir. 1972), wherein the

court noted:

‘In P.I, Interprises, Inc. v. Cataldo,

457 F.2d 1012 (1 Cir. 1972), this court

held that the effects of collateral estop-

pel cannot be avoided by recasting an

adjudicated issue in the form of an ac-

tion under the Civil Rights Act. We

noted in that decision the well-settled

principle that state courts are fully em-

powered to decide federal claims and

that ‘a state court decision on consti-

tutional issues is res judicata to the iden-

tical suit brought in federal court.’ Id.

at p. 1014. We reiterate that the Civil

Rights act is not a vehicle for collat-

eral attack upon final state court judg-

ments, Coogan v. Cincinnati Bar Asso-

ciation, 431 F.2d 1209 (6 Cir. 1970); Rh-

odes v. Meyer, 334 F.2d 709, 716 (8

Cir.), Cert. denied, 379 U.S, 915 (1964),

and that a writ of certiorari to the Un-

ited States Supreme Court is the only

method by which a decision may be re-

viewed.”’

A ease closely analogous to the matter at bar

App. 20

is Hilliard v. Commonwealth of Pennsylvania,

supra. There the Pennsylvania Game Comm-

ission, having failed in negotiations for the

purchase of the plaintiff’s land for use in a

conservation project, condemned in fee the

entire property. Preliminary objections to the

Declaration of Taking were filed and an opin-

ion was entered sustaining one such objection.

Simultaneously with the Court’s order, the Game

Commission was granted leave to amend the

Declaration of Taking in light of the condemnee’s

sustained objection. Thereafter, an amended

Declaration of Taking was filed and the con-

demnee entered a second set of Preliminary

Objections which were constitutional in nature.

These were dismissed upon the authority of

S 406c) of the Pennsylvania Eminent Domain

Code of 1964, which provides that all prelim-

inary objections must be raised at one time.

The condemnees appealed that dismissal order

to the Supreme Court of Pennsyivania where

the judgment was affirmed per curiam. No

petition for certiorari was filed to the United

States Supreme Court but rather an injunctive

action was commenced in the district court.

The court, noting that ‘‘ jurisdiction is founded

solely upon the alleged existence of numerous

questions arising under the Fourteenth Amend-

5 I FOR EAE EEN oe DEO Re ATU TER UOTES BANE as OO OE

WW

App. 21

ment to the United States Constitution’’ found

that it had subject matter jurisdiction upon

the allegation that the Game Commission had

abused its discretion and acted in bad faith

in violation of the constitutional stricture on

arbitrariness, capriciousness or bad faith. Never-

theless, the Court dismissed the complaint by

reason of the doctrine of res judicata. The

Court held that the Pennsylvania Eminent Domain

Code of 1964 afforded the plaintiffs an oppor-

tunity, which had been waived by the plaintiffs’

failure to abide by the prescribed procedure,

to raise all issues whether constitutional in na-

ture or otherwise. The state procedural ruling

was held to be an adjudication on the merits

of the substantive constitutional issues on the

authority of Angel, supra. Furthermore, the

court held that the issue raised by the due

process challenge to the procedural ruling was

cognizable in the state courts on direct attack

and in the Supreme Court of the United States

on petition for certiorari. Thus, such an attack

in a federal district court was collateral and

conclusively barred by Angel.

There is no suggestion in the record

sub judice that the appellate courts of the State

of Georgia were closed to the plaintiff. Thus,

App. 22

the foregoing considerations must be given force

here anc deference is accorded the conclusive

judgment of the state court.

It follows, then, that the defendant’s motion

treated herein as a motion for summary judgment

pursuant to Rule 12(c), Fed. R. Civ. P.,° is

granted.

It is so Ordered.

This 15th day of August, 1973.

s/Anthony A, Alaimo

United States District Judge

NOTICE OF APPEAL

(Number and Title Omitted) (Filed Sep 14, 1973)

Now comes the Plaintiff and appeals to the

United States Court of Appeals for the Fifth

Circuit from the Judgment of the Court entered

on the 16th day of August, 1973.

3 See also, Holmes v. United States, 353 F.2d

785 (5 Cir. 1965),

Qiiiittraiacecicnsiscasin

App. 23

This 31 day of Aug, 1972.

s/Percy J. Blount

«oe RN ss

S 36-614a EMINENT DOMAIN

36-614a. Appeal to superior court; jury trial;

further procedure.——In case either party, or

the representative of either party is dissatis-

fied, he or they may, within 10days from the time

the award is filed, enter in writing an appeal

from the award to the superior court of the

county where the award is filed; and at the

term succeeding the filing of the appeal, it shall

be the duty of the judge to cause an issue to

be made and tried by a jury as to the value

of the property taken or the amount of damage

done, with the same right to move for a new

trial and file a bill of exceptions as in cther

cases at law. The entering of said appeal

and tue proceedings thereon shall not hinder

or delay in any way the condemning body’s

work or the progress thereof (Acts 1957, pp.

387, 396)

Xterra

App. 24

STATE OF GEORGIA) IN THE SUPERIOR COURT

)

COUNTY OF BURKE) FOR SAID STATE AND

COUNTY

GEORGIA POWER COMPANY

CIVIL ACTION,

FILE NO, 512

CONDEMNOR

VS, APPEAL TO THE

228.8 Acres inthe 66th GM SUPERIOR COURT

District, Burke County,

Georgia, and

S.K,.BROWN, 3019 Park Ave.,

Augusta, Georgia

CONDEMNEE meteneireperer

Now comes S, K, BROWN, condemnee in

the above styled action, and being dissatisfied

with the award made by the Honorable R.U.

Harden, the special master therein, and filed

by him on the 2nd day of September, 1971,

ORR REND Le A TABI ak, Toto

fort

7

App. 25

and within ten days from the time the award

was filed, enters this the condemnee’s appeal

from said award to Superior Court of Burke

County, as provided in Georgia Code Annot-

ated 36-614a, and further states:

1,

That under laws of the State of Georgia,

more specifically, Georgia Code Annotated 36-

801, Georgia Power does not have the power

of eminent domain to condemn the 228.8 acres

of land in question for a nuclear power facil-

ity.

2.

That said condemnor has condemned con-

demnee’s prime property for the purpose of

erecting a Six Hundred Million ($600,000,000.00)

Dollar electric power facility.

3.

That it is not necessary or in the public

interest for the said condemnor to take the

said 228.8 acres of land in question. ,

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App. 26

4,

Said condemnor is attempting to deprive

condemnee of his property without due process

of law, and deprive condemnee: of his property

under the misrepresentation of eminent domain, .

without just compensation. Condemnor is will-

ing to expend large sums of money extracted

from the public as a public utility, but is un-

willing to pay condemnee reasonable prices

for his industrial property.

3.

That the condemnation of the said 228.8

acres in question was taken from condemnee

in violation of his rights under the Constitu-

tion of the United States and the State of Geor-

gia, more specifically, his right not to have

his property taken without due process of law

and just compensation.

(s)

Glenn B, Hester

Attorney for Condemnee

(s)

J. Carlisle

Attorney for Condemnee

(continued on next page)

App. 27

OF COUNSEL:

Sanders, Hester, Holley,

, Askin & Dye

206 7th Street

Augusta, Georgia

(C ertificate of Service)

Filed in Office

This 9th Day of

Sept. 1971 .

Clerk, Superior Court

Burke County, Ga.

App. 28

CHAPTER 36-8. CONDEMNATION, ETC., BY

Sec.

36-801.

36-802.

36-803.

36-804.

36-805.

36-806.

36-807,

36-808.

36-809.

36-810.

36-811.

36-812,

POWER COMPANIES,

Water power owners may purchase,

lease, or condemn easements; pay-

ment of compensation.

Payment of compensation or damages.

‘‘Public road’’ and ’’public highway”’

defined.

Acquisition of right to flood roads

and highways.

Appeal to superior court.

Rights pending the appeal.

Right of action of owner of damaged

property not prejudiced.

Condemnation of road or highway. No-

tice.

Procedure. Officers notified to act

for State or county.

Condemned road not to be used until

new road approved.

When and how interest in property may

be condemned,

Acquistion of certain mills, factories,

etc.

36-801. (5240) Water power owners may pur-

ON eA Oho wm

ae ene

es ee ae Tees

App. 29

chase, lease, or condemn easements; payment

of compensation.—Any corporation or individual

owning or controlling any water power, or lo-

cation for steam plant hereinafter mentioned,

and operating or constructing or preparing to

construct thereon a plant or works for gen-

erating electricity by water or steam power,

to be used for the purpose of lighting towns

or cities, or supplying motive power to rail-

road or street car lines, or supplying light,

heat or power to the public, shal! have the right

to purchase, lease or condemn rights-of-way

or other easements over the lands of others

in order to run lines of wires, maintain dams,

flow backwater or for other uses necessary

to said purposes, upon first paying just com-

pensation to the owner of the iand to be affect-

ed. (Acts 1897, p. 68.)

4s

App. 30

STATE OF GEORGIA) IN THE SUPERIOR COURT

)

COUNTY OF BURKE) FOR SAID STATE AND

COUNTY

GEORGIA POWER COMPANY

CIVIL ACTION,

FILE NO, 512

CONDEMNOR

VS,

228.8 Acres in the 66th GM

District, Burke County,

Georgia, and

S. K. BROWN, 3019 Park ORDER OF COURT

Avenue, Augusta, Georgia TO STRIKE POR-

ET Al, TIONS OF CONDE-

MNEE'SS NOTICE

OF APPEAL

CONDEMNEE

The motion of Condemnor, Georgia Pow-

er Company, in the above cause to strike por-

ee a

_"

App. 31

tions of Condemnee’s notice of appeal having

come on for hearing and after argument of

counsel it is:

CONSIDERED, ORDERED AND ADJ UDGED

that said motion be, and the same is hereby

granted, and paragraphs:

One (1), two (2), three (3), four (4), and

five (5) of Condemnee’s ‘‘Appeal to the Sup-

erior Court’’ of Burke County, Georgia, are

hereby stricken and ordered expunged from

the record in said cause.

Counsel for Condemnee is hereby direc-

ted to prepare and file a revised notice of

appeal within thirty days from date of this

order pursuant hereto.

(s)

JS.C.A.C.

FILED IN OFFICE

THIS 24th DAY OF

April, 1972

Clerk, Superior Court

Burke County, Ga.

-+ nag

App. 32

An examination of the Certified Record in

this cause reveals that there is not present

in that Record any Notice of any Hearing in

the Superior Court of Burke County, Georgia

preceeding the two orders filed the 24th day

of April 1972, striking from Condemnee’s No-

tice of appeal and Condemnee’s Record all

reference to the Constitutional questions and

legality of the taking by Georgia Power Co-

mpany.

IN THE SUPERIOR COURT OF

P"'RKE COUNTY, GEORGIA

GEORGIA POWER COMPANY

CIVIL ACTION, FILE NO, 512

VS.

228.8 Acres in the 66th GM

District, Burke County,

Georgia, and

S.K, BROWN, 3019 Park Avenue,

Augusta, Georgia

DARL Re 1B LANAI Gin Gh Set ole Sites Ae er ha Ue aa a

App. 33

FARMERS PRODUCTION CREDIT

ASSOCIATION, 6th Street, Waynesboro,

Georgia,

HONORABLE MRS, MARY O, HERRINGTON

Ordinary Burke County, Georgia

HONORABLE MRS, JOHN R, DINKINS

Tax Commissioner, Burke County,

Georgia

SAM STORY MOBLEY, Waynesboro,

Georgia

BURKE COUNTY HUNTING CLUB,

Waynesboro, Georgia

BURNIS COLEMAN, RFD, Waynesboro,

Georgia

Now comes S.K, BROWN and 228.8

acres, Condemnees in the above styled action,

and file this their answer to Petitioner’s pe-

tition for condemnation.

1.

Condemnee admits that part of para-

RO BAL BAP

App. 34

graph one of Condemnor’s petition that Condem-

nor is chartered only to produce electricity

by water and steam power, but is without suf-

ficient information or knowledge to form a

belief as to the truth of the facts alleged in

the remainder of paragraph one.

2.

Condemnee is without sufficient infor-

mation or knowledge to form a belief as to

the truth of the facts alleged in paragraph two,

but furth states that if Condemnor has possible

violated its rights under eminent domain in

other areas since Condemnor is proceeding

outside of its rights and powers in this action.

3.

Condemnee is without sufficient informa-

tion or knowledge to form a belief as to the

truth of the facts alleged in paragraph three

as to Condemnor’s petition, but denies that the

said area described in paragraph three is 228.8

acres.

A Cai tian ee Toe) ee CES” Sn ee ale CAE Seba Bidet

van Be bs

App. 35

4,

Condemnee denies paragraph four of

Condemnor’s petition, and further states that

Condemnor is taking condemned property in

violation of the Constitution of the United St-

ates and the State of Georgia as to due process

of law and just and adequate compensation.

3.

Condemnee is without sufficient informa-

tion or knowledge to form a belief as to the

truth of the facts alleged in paragraph five of

Condemnor’s petition.

6.

Condemnee denies paragraph six of Co-

ndemnor’s petition.

7.

Condemnee admits that part of parag-

raph seven that a Special Master was appointed

in these proceedings, but denies that part of

paragraph seven that there is a necessity for

a quick and effective determination of the just

pisarsenn sone

App. 36

and adequate compensation to be paid to Co-

ndemnee for the lands sought to be condemned

in this action,

8.

Condemnee admits paragraph eight of

Condemnor’s petition.

Condemnee admits paragraph nine of

Condemnor’s petition.

(s)

Glenn B. Hester

Attorney for Condemnee

(s)

J. Carlisle Overstreet

Attorney for Condemnee

This is to certify that I have,

prior to filing, served a copy

of the within and foregoing pl-

eading on opposing counsel as

required by law.

Sanders, Hester, Holley, Ash-

more & Boozer

ep athe! eae |

abe SE FEE nah ia fescue us

App. 37

FILED IN OFFICE

THIS 10th DAY OF

Sept. 1971

Clerk, Superior Court

Burke County, Ga.

STATE OF GEORGIA) INTHESUPERIOR COURT

)

COUNTY OF BURKE)FOR SAID STATE AND

COUNTY

GEORGIA POWER COMPANY CIVIL ACTION,

CONDEMNOR FILE NO, 512

=

VS.

228.8 Acres in the 66th GM

District, Burke County,

Georgia, and

S. K, BROWN, 3019 Park ORDER TO STR-

Avenue, Augusta, Georgia IKE CONDEMNEES

ET AL., ANSWER

CONDEMNEE

The motion of Georgia Power Company, Co-

ndemnor, in the above cause to strike the Co-

ndemnee’s answer filed in the Superior Court

App. 38

of Burke County, Georgia, on Condemnee’s ap-

peal to the Superior Court of Burke County,

Georgia, having come on for hearing and after

argument of counsel it is:

CONSIDERED, ORDERED AND ADJUDGED th-

at said motion be, and the same is hereby

granted, and the clerk of said court is hereby

ordered to strike and expunge said answer

from the record in said cause. This 19th

day of April, 1972.

(s)

J.S.C.A.C,

FILED INOFFICE

THIS 24th DAY OF

APRIL 1972

Clerk, Superior Court

Burke County, Ga.

lan So Mls ag iia Ra Ry

iinicaaainiaiy aacie eee citaiis

App. 39

IN THE SUPERIOR COURT OF

BURKE COUNTY, GEORGIA

GEORGIA POWER COMPANY

versus 5

CIVIL ACTION FILE NO, 512

In Rem Condemnation Proceedings

All that tract or parcel of land sftuate, lying

and being in the 66th G,M, District of Burke

County, Georgia, and being more particularly

described as follows: BEGINNING at an iron

pin‘ corner common to lands of James Mathis

and lands of S,K, Brown, said corner having

a co-ordinate value of X 624,998.938 and Y

1,147,251.011 as determined by the Plane Co-

ordinates of ‘‘The Georgia Co-ordinate Sys-

tem, East Zone’’, said corner is iocated on

the Westerly edge of the Savannah River; th-

ence from said Point of Beginning Southeast-

erly along the Westerly edge of said River

the following bearings and distances: South

47 deg. 31’ 20’’ East 458.20 feet to a point;

thence South 39 deg. 39’ 03’’ East 280.45 feet

to a point; thence South 35 deg. 18’ 18’’ East

278.45 feet to a point; thence South 30 deg.

41’ 43°’ East 156.16 feet to a point; thence

South 42 deg. 02’08’’ East 246.83 feet to a

ak Ee.

App. 40

point; thence South 34 deg. 59; 38;; East 326.

48 feet to a point; thence South 35 deg. 55’

19” East 294.47 feet to a point; thence South

40 deg. 45’ 21’ East 470.85 feet to an iron

pin; thence leaving said Westerly edge of said

River South 42 deg. 18’ 01’? West along the

dividing line between lands of Kimberly-Clark

Corporation and lands of S,K, Brown 2418.45

feet to an iron pin; thence South 59 deg, 18’

01’’ West along said dividing line 1683.75 feet

to an iron pin; thence South 59 deg. 18’ 01’

West along the dividing line between lands of

Roberts-Augusta, Inc. and lands of S.K, Brown

261.25 feet to an iron pin; thence North 26

deg. 40’ 03’’ West along the dividing line be-

tween lands of Elizabeth Barefield and lands

of S.K. Brown 2606.23 feet to an iron pin;

thence North 63 deg. 47’ 27” East ‘along the

dividing line between lands of Charlie Mathis

and lands of S,K. Brown 1167.97 feet to an

iron pin; thence North 63 deg, 42’ 41’ East

along the dividing line between lands of Daisy

Harper and lands of S.K, Brown 234.80 feet

- to an iron pin; thence North 53 deg. 56’ 22”

East along said dividing line 276.76 feet to

~an iron pin; thence North 53 deg. 56’ 22”

East -along the dividing line between lands of

James Mathis and lands of S.K, Brown 949.34

Vere Se 4

Sih DSS eR A AP BI ae on RG

aE SG tei Be EE MS ees cs

NOPE LSE ARIA Bl SBI NE EIR AR BEN HOGT

App. 41

feet to an iron pin; thence North 45 deg. 16’

12’? East along said dividing line 232.65 feet

to an iron pin; thence North 27 deg. 49’ 41’’

East along said dividing line 995.28 feet to

an iron pin and the Point of Beginning, con-

taining 228.8 acres, more or less, and being

more particularly shown according to a plat

of survey made for Georgia Power Company

Land Department, prepared by George D, Ta-

bakian, Registered Land Surveyor, dated Au-

gust 6, 1971, attached hereto and made a part

hereof, |

The above described tract of land is all of

' that land lying and being in the 66th G,.M,

District of Burke County, Georgia, said tract

is more particularly described in Deed dated

April 14, 1964.from Burnis Coleman to S,K,

Brown which is recorded in Deed Book 73,

Page 597 in the Office of the Clerk of Super-

ior Court of Burke County, Georgia. _

AND

1. S.K. Brown, 3019 Harper Street, Augusta,

Georgia

2. Farmers Production Credit Association,

A Rsagpesicinen pend srininas ORS TEES. 5

i

App. 42

6th Street, Waynesboro, Georgia

3. Honorable Mrs. Mary O, Herrington, Or-

dinary, Burke County, Georgia

4. Honorable Mrs. John R, Dinkins, Tax Co-

mmissioner, Burke County, Georgia

5. Sam Story Mobley, Waynesboro, Georgia

6. Burke County Hunting Club, Waynesboro,

Georgia

7. Burnis Coleman, RFD, Waynesboro, Geor-

gia

And

to any and all persons having or claiming any

right or interest in and to said described lands.

to superior court of said county

NOW COMES the GEORGIA POWER

COMPANY, of the State of Georgia, as Peti-

tioner and Condemnor, and, in the exercise

of its power of eminent domain, brings this

action for condemnation in accordance with the

App. 43

provisions cf its Charter and the laws of the

State of Georgia, in such cases made and pro-

vided, acting under proper corporate authority

duly granted by its Board of Directors, and

under the provisions and by the Authority of

and Act of the General Assembly of Georgia,

approved March 13, 1957 (Ga. Laws 1957, Page

387; Ga. Code Annotated Chapter 36-6A), as

amended by Act Number 558 of the General

Assembly of Georgia approved April 18, 1967

(Ga. Laws 1967, Page 825), and respectfully

shows to the court:

1.

That Petitioner is a corporation char-

tered and organized under the laws of the State

of Georgia, for the purpose of owning and con-

trolling water powers, erecting dams, construc-

ting steam plants, generating electricity by wa-

ter and steam power, erecting and operating

substations, transmission and distribution lines,

transmitting and distributing electricity to be

sold and used for lighting towns and cities, for

supplying motive power to railroads street car

lines and industries, for supplying light, heat

and power to the public generally, both urban

and rural, with the right to exercise eminent

domain for the aforesaid purposes.

App. 44

domain for the aforesaid purposes.

im

That Petitioner owns and controls water

powers, steam plants, substations, transmission

and distribution lines in this state, and is op-

erating said plants and works, generating el-

ectricity by water and steam plants, used for

lighting cities and towns, supplying motive power

to railroads, street car lines and industries,

supplying light, heat and power to the public

generally; that it owns, operates and maintains

a system of electric generating plants, sub-

stations, transmission and distribution lines with

wires, fixtures and appliances, including over-

head and underground protective wires, is gen-

erating, transmitting, distributing and is propo-

sing to generate, transmit and distribute elec-

tricity for the aforesaid purposes.

3.

This petition in rem is brought by

the Georgia Power Company to acquire by co-

ndemnation the unencumbered fee simple title

to the hereinafter described tract of land, to-

gether with all appurtenences and im-

a a

App. 45

provements located thereon, the same being

required in order to construct, operate and

maintain an electric generating plant and other

necessary facilities which will become a compo-

nent part of Georgia Power Company’s network

of generating, transmission and distribution sys-

tem, and to prohibit any person, firm, or cor-

poration from entering in or upon said tract,

and will be for the public purpose of genera-

ting, transmitting, and distributing electric cur-

rent to the public generally, said tract being

described as follows:

All that tract or parcel of land situate,

lying and being in the 66th G.M. Dis-

trict of Burke County, Georgia, and

being more particularly described as

follows: BEGINNING at an iron pin

corner common to lands of James Ma-

this and lands of S.K, Brown, said

corner having a co-ordinate value of

X 624,998.938 and Y 1,147,251.011 as

determined by the Plane Co-ordinates

of ‘‘The Georgia Co-ordinate System,

East Zone’’, said corner is located on

the Westerly edge of the Savannah Ri-

ver;thence from said Point of Begin-

ning Southeasterly along the Westerly

edge of said River the following bear-

App. 46

ings and distances: South 47 deg.

- 31’ 20” East 458.20 feet to a point;

thence South 39 deg. 39’ 03’’ East

286.45 feet to a point; thence South

35 deg. 18’ 18’ East 278.45 feet to

a point; thence South 30 deg. 41’ 43”’

East 156.16 feet to a point; thence So-

uth 42 deg. 02’ 08” East 246.83 feet

to a point; thence South 34 deg. 59’

38’’ East 326.48 feet to a point; thence

South 35 deg. 55’ 19’ East 294.47 feet

to a point; thence South 40 deg. 45’

21” East 470.85 feet to an iron pin;

thence leaving said Westerly edge

of said River South 42 deg. 18’ 01’

West along the dividing line between

lands of Kimberly-Clark Corporation

and lands of S,K. Brown 2418.45 feet

to an iron pin; thence South 59 deg.

18’ 01’ West along said dividing line

1683.75 feet to an iron pin; thence

South 59 deg. 18’ 01’ West along the

dividing line between lands of Roberts-

Augusta, Inc. and lands of S.K. Brown

261.25 feet to an iron pin; thence North

26 deg. 40’ 03’’ West along the divid-

ing line between lands of Elizabeth

Barefield and lands of S.K, Brown 2606.23

App. 47

feet to an iron pin; thence North 63

deg. 47’ 27°’ East along the dividing

line between lands of Charlie Mathis

and lands of S.K, Brown 1167.97 feet

to an iron pin; thence North 63 deg.

42’ 41’? East along the dividing line be-

tween lands of Daisy Harper and lands

of S.K. Brown 234.80 feet to an iron

pin; thence North 53 deg. 56’22”’ East

along said dividing line 276.76 feet to

an iron pin; thence North 53 deg. 56’

22”? East along the dividing line be-

tween lands of James Mathis and lands

of S.K. Brown 949.34 feet to an iron

pin; thence North 45 deg. 16’ 12”’ East

along said dividing line 232.65 feet to

an iron pin; thence North 27 deg. 49’

4)” East along said dividing line 995.28

feet to an iron pin and the Point of

Beginning, containing 228.8 acres, more

or less, and being more particularly

shown according to a plat of survey

made for Georgia Power Company Land

Department, prepared by George D, Ta-

bakian, Registered Land Surveyor.

App. 48

4,

Petitioner stands ready to pay just and

adequate compensation for said tracts of land,

apportenances, and improvements located

thereon.

5.

The owners, lien holders, and any other

persons known and unknown claiming any right,

title, power, interest, ownership, equity, claim

or demand in and to said land and all occu-

pants, tenants, leasees, and licensees are made

parties defendant to this action to the end that

they may come into court and make claim to

such interest or ownership or other right as they

have in the same and to the proceeds arising

therefrom.

6.

Because Petitioner believes that the title

of the apparent or presumptive owner of such

property is defective, doubtful, incomplete or

in controversy; or that there are or may be

persons unknown or non-resident who have or

may have come claim or demand thereon, or

2S Sa 8 PER SOE TINE NS RNS SERS OO AL Re IN TP EET ELT D>

wee Pe ee Tea

App. 49

some actual or contingent interest or estate

therein; or that there are minors or persons

under disability who are or may be interested

therein; or that there are taxes due or that

should be paid thereon; and therefore, Peti-

tioner has concluded that it is desirable to

have a judicial ascertainment of any question

connected with the acquisition by Petitioner of

such lands by the exercise of the power of

eminant domain, Petitioner brings this petition

in this court, having jurisdiction of this action,

for a judgment in rem against the above des-

cribed property, condemning the same to the

use of Petitioner, upon payment of just and

adequate compensation therefore to the person

or persons who may be found to be entitled

to such payment,

7.

Petitioner shows that this is a case

which, under the provisions of the aforesaid

Act of the General Assembly requires the ap-

pointment of a Special Master, accountable to

this Court and discharging his duties under

its supervision, to determine and adjudge the

fair and lawful, compensation to be paid the

owners of said property under the provisions

of the Constitution and laws of this State, it

having been determined, by your Petitioner,

AC

=

PALS PETIE GP eT ee

App. 50

of the Constitution and laws of this State, it

having been determined, by your Petitioner,

that there is a necessity for a quick and eff-

ective determination of the just and adequate

compensation to be paid to the owner or owners

of the lands sought to be condemned as af-

oresaid.

8.

Petitioner shows that the above des-

cribed tract of land sought to be condemned

was conveyed from Burnis Coleman toS.K, Brown

by Deed dated April 14, 1964 which is recorded

in Deed Book 73, Page 597 in the Office of the

Clark of Superior Court of Burke County, Ge-

orgia.

9.

Petitioner further shows that the above

described lands are subject to the following

Liens and Leases:

Deed to Secure Debt from oe. $.X.

Brown to Farmers Production Credit Associa-

tion dated April 22, 1964 which is recdrded

in Deed Book 72, Page 444 in the office of the

Clerk of Superior Court of Burke County, Ge-

eK So a riedastite

App. 51

Deed to secure Debt from S,K, Brown

to Farmers ion Credit Association dated

July 7, 1971 record said Clerk’s office

in Deed Book 86, Page 217.

Deed to Secure Debt from Dr. S.K,

Brown to Farmers Production Credit Associa-

tion dated June 7, 1967 which\is recorded in

Deed Book 78, Page 406 in the\ Office of the

Clerk of Superior Court of Burke\County, Ge-

orgia. Sam Story Mobley clai ownership

for his lifetime of a building on said property,

which is not a matter of public record; and

information has been furnished that Burke Co-

unty Hunting Club has a hunting lease or rights

that are not a matter of public record, and po-

ssible oral agricultural lease to Burnis Coleman.

10.

Petitioner alleges on information and

belief that S.K, Brown is in possession of the

said described property and as far as Peti-

tioner has been able to ascertain, the names

and addresses of all persons who may have

or claim some right, title or interest in the

land sought to be condemned or to be affted

hereby are

App. 52 \

l. S.K. Brown, ‘a Harper Street,

Augusta, Georgia .

2. Farmers Sicilians Credit As-

sociation, 6th Street, Waynes-

boro, Georgia

3. Honorable. Mrs. en .O. Her-

rington, Ordinary, Burke Co-

unty, Georgia

4. Honorable Mrs. John R, Dinkins.

Tax Commissioner, Burke

County, Georgia

5. Sam Story Mobley, Waynesboro,

Georgia

6. Burke County Hunting Club, .

ynesboro, Georgia \

7. Burnise Coleman, RFD, Waynes-

boro, Georgia

al

App. 53

WHEREFORE Petitioner prays as follows:

(a) For an order of this Court referring the

issues herein made to a Special Master,

and for the appointment of such Special

Master;

(b) For an order of this Court requiring the

defendants named herein and all persons

known and unknown, who may claim or have

an interest in said land, to appear before

such Special Master at a time and place

to be set by the Court, to make known their

right, ownership and interest in said land,

and their claims as to the value of same;

pe ee ee Pe ee ee

(c) That the order provide for a copy of this

; petition and of this order be served in the

4 manner provided for in the said Act ap-

proved March 18, 1957 (Ga. Laws 1957, Page

387; Ga. Code Annotated Chapter 36-6A);

as amended by an act approved March 10,

1966 (Ga. Laws 1966, Page 388; Ga. Code

Section 36-610A) upon:

(1) The person in possession of the pro-

perty, if any there be:

(2)

(3)

(4)

App. 54

Each person resident in the state

of Georgia who is named in the pe-

tition as having a possible interest in

said described property;

The Ordinary of said County, who

shall represent and act for any unknown

owner, unborn remainderman, and for

any minors, or other persons who are

non compos mentis, or otherwise in-

competent; who may have any title,

interest, claim or demand in and ag-

ainst said land;

Each person non-resident of the state

of Georgia, if any there be, who is

named in the petition as having a pos-

sible interest in said described pro-

perty. The sheriff, or any lawful

deputy of said County shall serve said

non-residents by posting a copy of the

petition together with this order on

the bulletin board at the courthouse

door of said County for not less than

five days prior to the time of the

hearing before the Special Master, and

by the insertion of a ‘notice, identi-

fying the property sought to be con-

App. 55

-demned, as well as the date and place

| of the hearing before the Special Mas-

: : ter, in the newspaper having general

circulation in said County and being

| | the same newspaper in which the sh-

; eriff’s advertisements are published,

and such publication to be made in

at least one issue of such newspaper

after the date of this order,, and not

less than four nor more than seven

days before such hearing before the

Special Master; and where the add-

ress of such non-residents is known,

by mailing to them by registered mail ©

a copy of this petition and order;

ee ER OT SS TN OT EO en ee ae

/ (d) That such order require the Special Mas-

ter to made an award as by the aforesaid sta-

tute provided, and to made a return of his

actings and, doings to connection therewith to

‘this Court and that, upon payment of such aw- |

. | ard into the Registry of the Court, the Court

decree and adjudge the absolute fee simple

title in and to said lands, free of lien and

encumbrance, to vest in Petitioner.

This 11th day of August, 1971.

App. 56

GEORGIA POWER COMPANY

By:

Senior Vice President

Assistant Manager Land Department

IN THE SUPERIOR COURT OF

BURKE COUNTY, GEORGIA

GEORGIA POWER COMPANY

Versus

CIVIL ACTION FILE NO, 512

In Rem Condemnation Proceedings

228.8 acres in 66th G.M, District of

Burke County, Georgia

and

S.K, BROWN, et al ORDER

The Foregoing petition read and considered,

It is ordered that the same be filed.

It is further ordered that R,U, Harden, a

competent attorney at law, residing in the Au-

gusta Judicial Circuit and of more than three

(3) years experience in the practice of law,

is hereby appointed a Special Master in and

for the Augusta Judicial Circuit to discharge

ouet dk pada

App. 57

the duties of Special Master in this case as

provided for by the Act of the General Assem-

bly approved March 13, 1957, (Ga. Laws 1957,

Page 387; Ga. Code Annotated Chapter 36-6A),

as amended by Act Number 558 of the General

Assembly of Georgia approved April 8, 1957

(Ga. Laws 1967, Page 825), and that he made and

file in the Office of the Clerk of Superior

Court of Burke County the oath and affidavit

required by Section 8 of the aforesaid Act

of the General Assembly.

It is further ordered that all persons owning

or claiming any right, title, interest, claim

or demand, or lienors, tenants, lessees or any

other person at interest, in and to the land

described in the foregoing petition, appear be-

fore such Special Master in Courtroom of the

Burke County Courthouse in Waynesboro, Ge-

orgia, on the 24 day of August 1971, at 10 o’-

clock, A.M, and then and there to make known

their rights, title and claim, and the value

me x GPO Ee eee

place, the Special. Master herein named shall

proceed to hear evidence as to the value of

the property sought to be condemned, all as

Ne es —

E ete a eee ae

App. 58

provided by law, and that after hearing such

evidence, and after making such personal in-

spection of the property as he may desire,

such Special Master shall make and file with

the Clerk of this Court an award and report

of his findings, as provided for in the afore-

said Act of the General Assembly, and such

award shall be filed with such Clerk within

three (3) days from the date of such hearing,

and, ;

It is further ordered that a copy of the

petition and of this order be served in the

manner provided for in the said Act approved

March 13, 1957 (Ga. Laws 1957, Page 387; Ga.

Code Annotated Chapter 36-6A), as amended

by an Act approved March 10, 1966 (Ga. Laws

1966, Page 388; Ga. Code Section 36-6]0-A)

upon:

(a) The person in Possession of the pro-

perty as described in the foregoing petition,

if any there be;

(b) Each person resident in the State of

Georgia who is named in the petition as having

a possible interest in said described property;

App. 59

(ec) The Ordinary of said County who shall

stand in the place of and protect the rights

of all unknown parties, unborn remaindermen

and for any minors, or other persons who are

non compos mentis, or otherwise incompetent,

who may have any title, interest, claim or de-

mand in and against said property;

(d) Each person non-resident of the State

of Georgia, if any, named in the petition as

having a possible interest .in said described pr-

operty. The sheriff, or any lawful deputy of

said County shall serve non-residents by post-

ing a copy of the petition together with this

order on the bulletin board at the courthouse

door of said County for not less than five days

prior to the time of the hearing before the

Special Master, and by the insertion of a notice

identifying the property sought to be condemned,

as well as the date and place of the hearing

before the Special Master, in The True Citi-

zen, the official organ of said County for one

issue, the date of which shall be not less than

four nor more than seven days prior to said

hearing before the Special Master, and where

the address of such non-residents is known,

by mailing to them by registered mail a copy

of the petition and this order.

App. 60

Dated this the llth day of August, 1971

(s) :

Judge of Superior Court

Augusta Judicial Circuit

SUPERIOR COURT

CIVIL ACTION FILE NO, 512

CITATION

GEORGIA, BURKE COUNTY.

TO:

> 2 Brown, 3019 Harper Street,

Augusta, Georgia

2. Farmers Production Credit As-

sociation, 6th Street, Waynes-

boro, Georgia

3. Honorable Mrs. Mary O. Herr-

ington, Ordinary, Burke County,

Georgia

4. Honorable Mrs. John R, Dinkins,

Tax Commissioner, Burke County,

Georgia

EL eS LE ON sae

App. 61

5. Sam Story Mobley, Waynesboro,

Georgia

6. Burke County Hunting Club, Way-

nesboro, Georgia

7. Burnis Coleman, RFD, Waynesboro,

Georgia

And

to any and all other persons having or claim-

ing any right, title of interest in and to the

hereinafter described lands.

The GEORGIA POWER COMPANY has

filed its petition to acquire by condemnation

the unencumbered fee simple title to a tract

of land for the purpose of locating an elec-

tric generating steam plant and other neces-

sary facilities thereon, said tract is more pa-

rticularly described below:

All that tract or parcel of land situ-

ate, lying and being in the 66th G,M,

District of Burke County, Georgia, and

being more particularly described as

follows: BEGINNING at an iron pin

corner common to lands of James

= os eee | << - "

ints ti eee —— :

App. 62

Mathis and lands of S.K, Brown, said

corner having a co-ordinate value of

X 624,998.938 and Y 1,147,251.011 as

determined by the Plane Co-ordinates

of ‘‘The Georgia Co-ordinate System,

East Zone’’, said corner is located on

the Westerly edge of the Savannah Ri-

ver; thence from said Point of Be-

ginning Southeasterly along the West-

erly edge of said River the following

bearings and distances: South 47 deg.

31’ 20” East 458.20 feet to a point;

thence South 39 deg. 39’ 03” East

280.45 feet to a point; thence South

35 deg. 18’ 18’’ East 278.45 feet to a

point; thence South 30 deg. 41’ 43°"

East 156.16 feet to a point; thence So-

uth. 42 deg. 02’ 08” East 246.83 feet

to a point; thence South 34 dog. 59”

38”’ East 326.48 feet to a point; thence

South 35 deg. 55’ 19’ East 294.47 feet

to a point; thence South 40 deg. 45’

21’ East 470.85 feet to an iron pin;

thence leaving said Westerly edge of

said River South 42 deg. 18’ 01’ West

along the dividing line between lands

of Kimberly-Clark Corporation and la-

nds of S,K, Brown 2418.45 feet to an

App. 63

iron pin; thence South 59 deg. 18’ 01’’

West along said dividing line 1683.75

feet to an iron pin; thence South 59

deg. 18’ 01’? West along the dividing

line between lands of Roberts-Augusta,

Inc. and lands of S.K, Brown 261.25

feet to an iron pin; thence North 26

deg. 40°03” West along the dividing

line between lands of Elizabeth Ba-

refield and lands of S.K. Brown 26-

06.23 feet to an iron pin; thence No-

rth 63 deg. 47’ 27°’ East along the 2

dividing line between lands of Char-

lie Mathis and lands of S.K. Brown

1167.97 feet to an iron pin; thence No-

rth 63 deg. 42’ 41’’ East along the

dividing line between lands of Daisy

Harper and lands of S.K, Brown 234.80

feet to an iron pin; thence North 53

deg. 56’ 22” East along said dividing

line 276.76 feet to an iron pin; thence

North 53 deg. 56’ 22’’ East along the

dividing line between lands of James

Mathis and lands of S.K. Brown 949.34

feet to an iron pin; thence North 45

deg. 16’ 12’’ East along said dividing

line 232.65 feet to an iron pin; thence

North 27 deg. 49’ 41’’ East along said

EIS LE LED OTE REE: 88 ETON Na SER ea Re GEER LR a REE, GID, 1a eaagemennel

a oe ee)

App. 64

dividing line 995.28 feet to an iron

pin and the Point of Beginning, con-

taining 228.8 acres, more or less, and

being more particularly shown accor-

ding to a plat of survey made for

Georgia Power Company Land Depart-

ment, prepared by George D, TABA-

ment, prepared by George D, Taba-

kian, Registered Land Surveyor, dated

August 6, 1971, attached to said petition.

The above described tract of land is

all of that land lying and being in the

66th G.M, District of Burke County

Georgia, said tract is more particular-

ly described in Deed dated April 14,

1964 from Burnis Coleman toS.K, Brown

whick is recorded in Deed Book 73,

Page 597 in the Office of the Clerk

of Superior Court of Burke County,

Georgia.

NOW, THEREFORE, you and each of you

are required to be and appear before R.U.Ha-

rden, Special Master in Courtroom Burke Cou-

nty Courthouse in Waynesboro, Georgia, on the

24 day of August, 1971, at 10 o’clock A.M. to

make known your rights or interest, if any,

in and to said described property and your

en de i a ee ee A ee ee eee

.

os

App. 65

claims of the value thereof, and any other mat-

ters material to your respective rights.

Witness the Honorable William M, Flem-

ing, Jr., Judge, Superior Court, Augusta Judicial

Circuit, this the llth day of August 1971.

(s) sh

Clerk, Superior Court, Burke County, Georgia

GEORGIA, RICHMOND COUNTY

I have this day served the Condemnee, S.K,

BROWN at 7:49 p.m., 3019 Park Lane, person-

ally, with a copy of the within petition and order.

This 12th day of August, 1971.

(s)

Deputy Sheriff

IN THE SUPERIOR COURT OF

BURKE COUNTY, GEORGIA

CIVIL ACTION, FILE NO, 512

GEORGIA POWER COMPANY

VS,

App. 66.

228.8 acres in the 66th GM

District, Burke County,

Georgia, and

S.K. BROWN, 3019 Park Avenue,

Augusta, Georgia

FARMERS PRODUCTION CREDIT ASSOCIAT-

ION, 6th Street, Waynesboro, Georgia

HONORABLE MRS, MARY 0, HERRINGTON,

Ordinary, Burke County, Georgia

HONORABLE MRS, JOHN R, DINKINS,

Tax Commissioner, Burke County,

Georgia

SAM STORY MOBLEY, Waynesboro,

Georgia

BURKE COUNTY HUNTING CLUB,

Waynesboro, Georgia

BURNIS COLEMAN, RFD, Waynesboro,

Georgia.

Se eT ee PPM, LR OOO LIES MOE MIS LIENERT ETO AS PK SIE a SET ATONE TS SHI

sini inhale as ee TTS ET ee ree

App. 67

AN ORDER

It appearing that Glenn B, Hester, at-

torney for S.K, BROWN and 228.8 acres having

just been employed on August 16, 1971, by said

S.K. BROWN and 228.8 acres, IT IS ORDERED,

as agreed by all parties concerned, that the

attorney for S.K, BROWN and 228.8 acres shall

have a 5-day continuance from the date of this

Order to thoroughly prepare and familiarize

themselves with all facets of the above cap-

tioned proceeding.

IT IS FURTHER ORDERED that the

hearing before a Special Master be continued

for the 5-day period herein described, and as

set out under Georgia Code Annonated, Title

36, Section 6ll-a, and the hearing to be set

for August 31, 1971, at 11:00 A.M, in Burke

County, Georgia.

This 23rd day of August, 1971.

(s)

William M, Fleming, Jr., Judge of the

Superior Courts of the Augusta Judicial

Circuit

In Rem Condemnation Proceedings

App. a

IN THE SUPERIOR COURT OF

BURKE COUNTY, GEORGIA

GEORGIA POWER COMPANY

versus

CIVIL ACTION FILE NO, 512

RETURN OF SPECIAL MASTER

I, R,U. HARDEN, the Special Master app-

ointed and chosen by the Court to hear evidence,

give full consideration to all matters touching

upon the value of the property sought to be

condemned, as shown by the description of the

property in the case of Georgia Power seal

pany, Condemning Body, versus

All that tract or parcel of land situate,

lying and being in the 66th G.M. District

of Burke County, Georgia, and being

more particularly described as follows:

BEGINNING at an iron pin corner com-

mon to lands of James Mathis and lands

of S.K. Brown, said corner having a

co-ordinate value of X 624,998.938 and

Y 1,147,251.011 as determined by the Pl-

ane Co-ordinates of ‘The Georgia Co-

\

PIRSA DL y WHY DERE URINE AO ODA AaP ORLA OB Oe SS TNE FREI Gey POET NO LP OE

App. 69

ordinate System, East Zore’’, said cor-

ner is located on the Westerly edge of

the Savannah River; thence from said

Point of Beginning Southeasterly along

the Westerly edge of said River the

following bearings and distances: So-

uth 47 deg. 31’ 20’’ East 458.20 feet

to a point; thence South 39 deg. 39’

03’’ East 280.45 teet to a point; thence

South 35 deg. 18’ 18’’ East 278.45 feet

to a point; thence South 30 deg. 41’

43’’ East 156.16 feet to a point; thence.

South 42 deg. 02’ 08’’ East 246,83

feet to a point; thence South 34 deg.

59’ 38’ East 326.48 feet to a point;

thence South 35 deg. 55’ 19’ East 294.47

feet to a point; thence South 40 deg.

45’ 21” East 470.85 feet to an iron

pin; thence leaving said Westerly edge

of said River South 42 deg. 18’ 01’’

West along the dividing line between |

lands of Kimberly-Clark Corporation

and lands of S.K, Brown 2418.45 feet

to an iron pin; thence South 59 deg.

18’ 01’ West along said dividing line

1683.75 feet to an iron pin; thence

South 59 deg. 18’ 01’’ West along the

dividing line between lands of Roberts-

App. 70

Augusta, Inc. and lands of S.K, Brown

261.25 feet to an iron pin; thence No-

rth 26 deg, 40’ 03’ West along the

dividing line between lands of Eliza-

beth Barefield and lands of S.K, Brown

2606.23 feet to an iron pin; thence No-

rth 63 deg. 47’ 27’ East along the

dividing line between lands of Charlie

Mathis and lands of S,K, Brown 1167.97

feet to an iron pin; thence North 63

deg. 42’ 41’’ East along the dividing

line between lands of Daisy Harper and

lands of S,K, Brown 234.80 feet to an

iron pin; thence North 53 deg. 56’

22’’ East along said dividing line 276.76

feet to an iron pin; thence North 53

deg. 56’ 22’’ East along the dividing

line between lands of James Mathis

and lands of S.K, Brown 949.34 feet

to an iron pin; thenceNorth 45 deg.

16’ 12’’ East along said dividing line

232.65 feet to an iron pin; thence No-

rth 27 deg. 49’ 41’’ East along said

dividing line 995.28 feet to an iron

pin and the Point of Beginning, con-

taining 228.8 acres, more or less, and

being more particularly shown accor-

ding to a plat of survey made for

Georgia Power Company Land Depart-

ment, prepared by George D, Tabaki-

an, Registered Land Surveyor,

ae ae

App. 71

ding to a plat of survey made for Ge-

orgia Power Company Land Department,

prepared by George D, Tabakian, Re-

gistered Land Surveyor, dated August

6, 1971, attached to said petition.

The above described tract of land is

all of that land lying and being in the

66th G.M. District of Burke County,

Georgia, said tract is more particularly

described in Deed dated Aprii 14, 1964

from Burnis Coleman to S.K, Brown

which is recorded in Deed Book 73,

Page 597 in the Office of the Clerk

of Superior Court of Burke County,

Georgia.

AND

1. S.K. Brown, 3019 Harper Street,

Augusta, Georgia

2. Farmers Production Credit Asso-

ciation, 6th Street, Waynesboro, Georgia

3. Honorable Mrs. Mary O, Herr-

ington, Ordinary, Burke County, Georgia

ee

App. 72

4. Honorable Mrs. John R, Dinkins,

Tax Commissioner, Burke County, Georgia

5. Sam Story Mobley, Waynesboro,

Georgia

6. Burke County Hunting Club, Wa-

ynesboro, Georgia

7. Burnish Coleman, RFD, Waynes-

boro, Georgia

RETURN OF SPECIAL MASTER (continued)

CIVIL ACTION FILE NO, 512

and having first taken the oath as required by

law of the Special Master, the same having been

filed with the Clerk of the Superior Court of

Burke County, which is the county of my resi-

dence and having heard evidence under oath

and given consideration to the value of such

property on the 3ist day of August, at ll o’-

clock A,M., as provided for in the order of

the Court, do decide and recommend to the

Court as follows, to wit:

1. I find and award to S.K,. Brown, Con-

demnee, the sum of $55,750.00 as the actuai

App. 73

value of the property sought to be condemned,

except as to a clubhouse on the property which

the said S.K, Brown stipulated to be the proper-

ty of Sam Story Mobley and which the said Sam

Story Mobley and Condemnor stipulated to have

a value of $3,000.00, and I therefore find and

award to the said Sam Story Mobley, Condem-

nee, the sum of $3,000.00 as the actual value

of said clubhouse; and I further find and award

to Burnis Coleman, Condemnee, the tenant far-

ming said lands, the sum of $1,750.00 as the

actual value of the crops of said tenant on

the lands sought to be condemned, it having

been stipulated that this is the value of the

crops that had been agreed upon by the Con-

demnor and said Burnis Coleman;

2. I find consequential damages to the

remaining property in the amount of $ NONE;

3. I find consequential benefits to the re-

maining property in the amount of $ NONE;

4, Balancing the consequential benefits ag-

ainst the consequential damages, I find andaward

to condemnees in this case, namely, S.K, Brown

the total sum of $55,750.00, Sam Story Mobley

the total sum of $3,000.00, and Burnis Coleman

the total sum of $1,750.00; and I respectfully

recommend to the Court that the said property

be condemned by a judgment in rem to the use

App. 74

of the condemnor upon the payment of the last

stated sums into the registry

This 2nd day of September, 1971.

(s)

Special Master

GEORGIA, BURKE COUNTY,

I, RAYMONG N, DELAIGLE, Clerk of the

Superior Court in and for said County, hereby

certify that the above is a true and correct

copy of RETURN OF SPECIAL MASTER, in the

above stated case, as the same appears of file

and of record in Civil Action number 512, in

Minute Book EE, Page 318, 325 and in Deed Book

, page —————— in this office.

WITNESS my hand and seal of said Court,

this 2nd day of September, 1971.

(s)

Clerk, Superior Court, Burke County, Georgia

FILED IN OFFICE

THIS 2nd DAY OF

Sept., 1971

(s)

Clerk, Superion Court

Burke County, Ga.

3

som - — . mith TON A PLE LDL YLT MENTE LF. IS CRT IE PRIE

( Pe = re

Ce ee oS at TS OBC UN Rm Hin SO Sy

App. 75

SUPERIOR COURT j

CIVIL ACTION FILE NO, 512

GEORGIA, BURKE COUNTY.

JUDGMENT OF COURT

It appearing to the Court that:

Special Master duly appointed and qualified

has made an award and finding in the above

stated case;

All provisions of law as to service and

notice on all partice interested in the proper-

ty described in the petition have been complied

with, pursuant to orders and directions of the

Court consistent with justice and due process

of laws:

It is decreed, ordered and adjudged that

all the property described in this petition, to-

wit:

All that tract or parcel of land situate,

lying and being in the 66th G.M, Dis-

trict of Burke County, Georgia, and

being more particularly described as

—_—EEE7E CBRE LENCE Fe AEE POE De oS ceo! BB aD

App. 76

follows: BEGINNING at an iron pin

corner common to lands of James Ma-

this and lands of S.K, Brown, said

corner having a co-ordinate value of

X 624,998.938 and Y 1,147,251.011 as

determined by the Plane Co-ordinates

of “The Georgia Co-ordinate System,

East Zone’’, said corner is located

on the Westerly edge of the Savan-

nah River; thence from said Point of

Beginning Southeasterly along the West-

erly edge of said River the following

bearings and distances: South 47 deg.

31’ 20’ East 458.20 feet to a point;

thence South 39 deg. 39’ 03’’ East 280.45

feet to a point; thence South 35 deg.

18’ 18’? East 278.45 feet to a point;

thence South 30 deg. 41’ 43’ East 156.16

feet to a point; thence South 42 deg.

02’ 08°’ East 246.83 feet to a point;

thence South 34 deg. 59’ 38”’ East 326.48

feet to a point; thence South 35 deg.

55’ 19’ East 294.47 feet to a point;

thence South 40 deg. 45’ 21’ East 470.85

feet to an iron pin; thence leaving said

Westerly edge of said River South 42

deg. 18’ 01’ West along the dividing

line between lands of Kimberly-Clark

PP OAR NOSE A OOO, TO Rw

App. 77

Corporation and lands of S.K, Brown

2418.45 feet to an iron pin; thence

South 59 deg. 18’ 01’? West along said

dividing line 1683.75 feet to an iron

pin; thence South 59 deg. 18’ 01’’ West

along the dividing line between lands

of Roberts-Augusta, Inc. and lands of

S.K. Brown 261.25 feet to ar iron pin;

thence North 26 deg. 40’ 03’’ West along

the dividing line between lands of Eli-

zabeth Barefield and lands of S.K, Br-

own 2606.23 feet to an iron pin; thence

North 63 deg. 47’ 27”’ East along the

dividing line between lands of Charlie

Mathis and lands of S,K, Brown 1167.97

feet to an iron pin; thence North 63

deg. 42’ 41’’ East along the dividing

line between lands of Daisy Harper

and lands of S.K. Brown 234.80 feet

to an iron pin; thence North 53 deg.

56’ 22’? East along said dividing line

276.76 feet to an iron pin; thence No-

rth 53 deg. 56’ 22’’ East along the

dividing line between lands of James

Mathis and lands of S.K. Brown 949,34

feet to an iron pin; thence North 45

deg. 16’ 12”’ East along said dividing

line 232.65 feet to an iron pin; thence

a ~ —— RTE TAN RL LI EEE A

App. 78

North 27 deg. 49’ 41’’ East along said

dividing line 995.28 feet to an iron

pin and the Point of Beginning, con-

taining 228.8 acres, more or less, and

being more particularly shown according

to a plat of survey made for Georgia

Power Company Land Department, pr-

epared by George D, Tabakian, Regis-

tered Land Surveyor, dated August 6,

1971, attached to said petition.

The above described tract of land is

all of that land lying and being in the

66th G.M, District of Burke County,

Georgia, said tract is more particul-

arly described in Deed dated April 14,

1964 from Burnis Coleman toS.K, Brown

which is recorded in Deed Book 73,

Page 597 in the Office of the Clerk

of Superior Court of Burke County,

Georgia.

AND

1, S.K, Brown, 3019 Harper Street,

Augusta, Georgia

2. Farmers Production Credit Asso-

AB TREAT NE CEL ATONE RIL OL IS NTE NAOT EAS ATE: Ha Pe PETE TT

App. 79

ciation, 6th Street, Waynesboro, Ge-

orgia

3. Honorable Mrs. Mary O, Herring-

ton, Ordinary, Burke County, Georgia

4. Honorable Mrs. John R, Dinkins,

Tax Commissioner, Burke County, Ge-

orgia

5. Sam Story Mobley, Waynesboro,

Georgia

6. Burke County Hunting Club, Wa-

ynesboro, Georgia

7. Burnis Coleman, RFD, Waynesboro,

Georgia

JUDGMENT OF COURT (continued)

CIVIL ACTION FILE NO, 512

be, and the same is hereby condemned in fee

simple; and upon the payment of the sum of

$55,750.00 for S.K, Brown, Condemnee, the sum

of $3,000.00 for Sam Story Mobley, and the

sum of $1,750.00 for Burnis Coleman, the Pl-

aintiff, Georgia Power Company, and its suc-

—___™ Se INR Reet

App. 80

cessors and assigns, are hereby vested with

full, complete, and unencumbered fee simpletitle

to all the land, improvements and appurten-

ances described in the petition.

Let this order be filed as part of the

record in this case.

This 2nd day of September, 1971.

File No.

Hour Filed M,

Date Filed, May 3, 1972

(s)

Deputy Clerk Superior Court

Burke County, Georgia

(s)

Judge, Superior Court, .

Augusta Judicial Circuit

GEORGIA, BURKE COUNTY,

I, RAYMOND N. DELAIGLE, Clerk of the

Superior Court in and for said County, hereby

certify that the above is a true and correct

copy of JUDGMENT OF COURT, in the above

stated case, as the same appears of file and

of record in Book No. EE, Page No, 318-325

in my office.

WITNESS my hand and seal of said Court,

App. 81

this 2nd day of September, 1971.

(s) :

Clerk, Superior Court, Burke County, Georgia

Burke County, Georgia

Real Estate Transfer Tax

Paid $56.00

‘., Date September 3, 1971

(s)

Clerk of Superior Court

BURKE SUPERIOR COURT

NO, 512

GEORGIA POWER COMPANY, Plaintiff

vs.

S.K, BROWN, ET AL., Defendant

MOTION FOR NEW TRIAL

S.K. Brown, defendant above named, moves

the court to set aside the verdict returned

herein on August 29, 1972, and the judgment

entered thereon on September 1, 1972, and to

grant a new trial on the following grounds:

B

App. 82

(1) The verdict is contrary to law.

(2) The verdict is contrary to the evi-

dence.

(3) The verdict is strongly against the

weight of the evidence.

Dated: September 28, 1972

(s)

Jerry M, Daniel

(s) ee

George W, Fryheier

ATTORNEYS FOR MOVANT

217 East Sixth Street

Waynesboro, Georgia 30830

P.O, Box 66

Waynesboro, Georgia 30830

Rule Nial and Supersedeas

The foregoing motion read and considered.

Counsel for the opposing party is (are) hereby

ordered to show cause before me on the 3]

day of October, 1972, at 10:30 o’clock A.M.

me SOE 2 SLES

App. 83

at the Courthouse in Augusta, Georgia, why the

motion should not be granted.

Let this order act as a supersedeas until

further order of court. In the meantime and

until the final hearing of said motion, whenever

the same may be had, movant is allowed to

amend and perfect the motion, and to prepare

and present for approval, a transcript of the

evidence and proceedings, which transcript may

be filed in the Clerk’s office at any time within

ten (10) days after the motion is heard and

determined.

If for any reason, said motion is not heard

and determined at the time and place above

fixed, it is ordered that the same be heard and

determined at such time as may be agreed upon

by counsel, and upon failure to agree, then at

such time and place as the presiding Judge may

fix, on the application of either party, of which

time and place the opposite party shall have

at least five days’ notice; and if for any rea-

son this motion is not heard and determined be-

fore the beginning of the next term of this

court, then the same shall stand on the docket

until heard and determined at any term there-

after.

App. 84

This 28 day of September, 1972

(s)

Judge, Burke Superior Court

IN THE SUPERIOR COURT FOR THE

COUNTY OF BURKE, STATE OF GEORGIA

CIVIL ACTION, FILE NO, 512

JUDGMENT

GEORGIA POWER COMPANY, CONDEMNOR,

Vs.

S.K. BROWN, ET AL,, CONDEMNEE,

This action came on for trial before the

Court and a jury, the Honorable F, Frederick

Kennedy presiding, and the issue having been

duly tried and the jury having duly rendered

its verdict therein in favor of the Condemnee,

the sum of Seventy Thousand ($70,000.00) Do-

llars compensation for loss of land; and,

It appearing to the Court that the Con-

demnor deposited into the Court the sum of

Fifty-five Thousand, Seven Hundred Fifty ($-

55,750.00) Dollars.

App. 85

IT IS THEREFORE, CONSIDERED, OR-

DERED AND ADJUDGED, that the Condemnee,

S.K.Brown, et al., have and recover of the

Condemnor, Georgia Power Company, the sum

of Seventy Thousand ($70,000.00) Dollars toget-

her with interest on the sum of Fourteen Th-

ousand, Two Hundred Fifty ($14,250.00) Dol-

lars at the rate of seven (7%) per cent per

annum from September 2, 1971, and all costs

of Court.

IT IS FURTHER ORDERED that the Cl-

erk of the Superior Court apply upon payment

of this Judgment said sum of Fifty-five Thou-

sand, Seven Hundred Fifty ($55,750.00) Dollars

and in the event said sum has been disbursed

to the Condemnee that he credit this Judgment

with said sum,

This Ist day of September, 1972.

(s)

F, Frederick Kennedy, Judge, Superior

Court, Richmond County, Georgia.

App. 86

This statement is born out by the Record

of the trial which Petitioner has been unable

to obtain.