Kitchens v. Lincoln Cnty., A23A0193, 2023 WL 4170459 (Ga. Ct. App. June 26, 2023)
Following a hearing on the matter, the trial court found as a matter of fact that, “[the County’s] ownership interest in the condemned segment of Booth’s Branch Road terminated upon [the federal government] acquiring title to the condemned property,” and “[the County] has not subsequently completed the required steps necessary to establish prescriptive title of the former Booth’s Branch Road.” Nevertheless, the trial court determined that the Kitchens had failed to meet their burden of showing that sovereign immunity had been waived because they voluntarily removed the gate and the County had not invoked the power of eminent domain.
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Specifically as to claims seeking injunctive relief, sovereign immunity is waived in two circumstances: “(1) where the Just Compensation Provision’s requirement of prepayment before a taking or damaging applies and has not yet been met; or (2) where the authority effecting a taking or damaging has not invoked the power of eminent domain.” Id. The waiver allows an injunction “only to stop the taking or damaging until such time as the authority fulfills its legal obligations that are conditions precedent to eminent domain.” Id.
Here, the trial court found as a matter of fact that the County’s ownership interest in the disputed property had terminated and that it had not established title by prescription. Thus, allegations that the County continued to threaten to remove and/or damage the Kitchens’ gate crossing property to which the County allegedly has no ownership interest creates a condition on private property that amounts to a claim of inverse condemnation. . .. As such, sovereign immunity was waived, and the trial court erred in holding otherwise. . . . We, therefore, remand this case to the trial court so that it may consider the merits of the parties’ cross-motions for summary judgment.
