Black v. Fayette County

Hunstein, Justice.

Fayette County chose to utilize the Special Master Act, OCGA § 22-2-100 et seq., as its method of condemning permanent and temporary easements over property owned by William Edgar Black and others. The Special Master Act provides that interested parties are to be served with an order setting forth the time and date of the hearing before the special master, OCGA §§ 22-2-102 and 22-2-107, and requires that the hearing before the special master “shall take place not less than ten days nor more than 15 days after the date of service” of the order. OCGA § 22-2-102. The evidence is uncontroverted that Black was served with the order less than ten days from the hearing held by the special master. The special master, after denying Black’s motions for a continuance and for dismissal of the petition of condemnation which were made on the basis of the County’s non-compliance with OCGA § 22-2-102, proceeded over objection with the hearing and issued an award. Written exceptions to the award specifically included the violation of OCGA § 22-2-102. The superior court upheld *176the award and the Court of Appeals affirmed. Black v. Fayette County, 212 Ga. App. 626 (442 SE2d 802) (1994). We reverse.

As this Court recognized in Sims v. City of Toccoa, 256 Ga. 368, 369 (349 SE2d 385) (1986),

[t]aking private property for the benefit of the public is an exercise of high power, and all the conditions and limitations provided by law must be closely followed. Too much caution cannot be observed to prevent oppression and abuse. [Cit.]

See also Wrege v. Cobb County, 186 Ga. App. 512 (367 SE2d 817) (1988). The County, having elected to use the Special Master Act, is bound by the provisions of law following its own election. Id. at 514. While the Act does recognize that “a substantial and reasonable effort to comply” is all that is required to effect service on interested parties, OCGA § 22-2-107 (g), no comparable leeway was provided by the Legislature under OCGA § 22-2-102 regarding the strict amount of time between service and the hearing before the special master.

Since the County failed to abide by the clear language of the statutory method it elected to follow, and since the record is clear that there was no acquiescence in or waiver of strict compliance with the statute,1 the superior court erred by not declaring the hearing of the special master void for violation of OCGA § 22-2-102. Accordingly, the affirmance of that ruling in the Court of Appeals is reversed.

Judgment reversed.

All the Justices concur, except Hunt, C. J., and Fletcher, J., who dissent.

We find no merit in the County’s argument that its failure to comply with the strict statutory requirement in OCGA § 22-2-102 can be excused by the fortuitous fact that Black’s counsel also represented the other condemnees.