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McElmurray v. Augusta-Richmond County7/11/2005
se condemnation claim does not lie where, as here, a property owner consents to the action of the government that resulted in the alleged taking or damaging of the property.
The trial court ruled that the McElmurrays' tort claims are barred by the doctrine of sovereign immunity. In so ruling, the court rejected the McElmurrays' argument that the city had waived sovereign immunity under OCGA ยง 33-24-51 by purchasing liability insurance arising from their use or operation of the motor vehicles used to apply the sewage sludge to the McElmurrays' lands. Finding this case more analogous to Harry v. Glynn County and Saylor v. Troup County (the cases relied on by Augusta-Richmond County), than to Mitchell v. City of St. Marys and Crider v. Zurich Ins. Co. (the cases relied on by the McElmurrays), the court concluded that any damages to the McElmurrays' lands by application of the sewage sludge had not arisen from motor vehicle use by the city. In reliance on Donaldson v. Dept. of Transp., Bontwell v. Dept. of Corrections, and Dept. of Corrections v. Lamaine, the court also found this action to be barred by sovereign immunity because it was not filed until after the effective date of the 1991 state constitutional amendment eliminating the insurance waiver of sovereign immunity.
By order entered in January 2002, the trial court dismissed the McElmurrays' claim under the Georgia HSRA on the ground that the HSRA does not provide for a waiver of sovereign immunity. And the court awarded summary judgment to the county on the McElmurrays' breach of contract claim by order entered in February 2004, finding that this claim is barred by the applicable statute of limitation and by an indemnification and hold harmless clause in the parties' agreements; that the evidence is insufficient, as a matter of law, to establish the requisite causation between the city's alleged breaches of contract and the McElmurrays' injuries and damages; and that the McElmurrays' damage calculations are too speculative to support a recovery.
1. The McElmurrays contend that the trial court erred in dismissing their inverse condemnation claim. There is no merit in this contention.
In Janowsky, the United States Claims Court, in reliance on a long line of federal precedent, sanctioned "the drawing of a bright line between voluntary dealings between a citizen and the government involving property and government takings of property in the constitutional sense." "Simply put," the court concluded that that part of the Fifth Amendment prohibiting the taking of private property for public use without just compensation "was not meant to protect property owners in their voluntary dealings with the government." Janowsky broadly held that there is never a taking of private property for public use within the meaning of the Fifth Amendment when the property owner agrees to allow his property to be used by the government. If the plaintiff and the government have a contract, then all rights and remedies pertaining to the subject matter of the contract should be governed by contract principles.
Georgia law is in accord. In Barwick v. Roberts, the plaintiff filed a petition alleging that he had leased property from certain landowners for the purpose of developing a farmer's market and then assigned the leases to the Georgia commissioner of agriculture, while retaining title to any improvements made on the property. The plaintiff complained that the commissioner's successor had deprived him of his rights in the improvements. Our Supreme Court held that, the petition does not disclose that any of the plaintiff's property has been wrongfully and forcibly taken from him, and in like manner seized and occupied by any of t
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