Oliver v. Union Point & W.P.R. Co.
| Decision Date | 22 July 1889 |
| Citation | 9 S.E. 1086,83 Ga. 257 |
| Parties | OLIVER v. UNION POINT & W. P. R. Co. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The constitutional provision that private property is not to be taken for public purposes without just and adequate compensation being first paid, is too plain to be misunderstood, and is not to be violated or evaded by the legislature or the courts.
2. The method of ascertaining what is just and adequate compensation is matter for adoption and regulation by the legislature. Inasmuch as trial by jury is not a constitutional right in cases involving the power of eminent domain, a statutory appeal given in such cases from the award of assessors is subject to legislative discretion, both in its allowance and in the consequences of its allowance, the latter being in the nature of terms and conditions of the appeal system.
3. A railroad corporation created under the general law of 1881 may, after having paid or tendered to the land-owner the compensation awarded by the assessors, prosecute the work of construction pending an appeal from the award to the superior court, the statute allowing the appeal providing expressly that the same shall not hinder or delay the progress of the work.
4. Tender of the sum assessed and awarded, duly made and continued, but refused, is the equivalent of actual payment of the award, in its effects on the right of the corporation to enter upon the land and prosecute the work of construction.
5. Although the tender was imperfectly pleaded, especially in not making it continuous, yet the impending damage not being irreparable, the fact of tender not being disputed, and no lack of solvency of the corporation being alleged, the discretion of the judge in denying the injunction upon the condition prescribed in his order will not be controlled. Injunction before decree is discretionary in all cases.
Error from superior court, Greene county; JENKINS, Judge.
Bill in equity by one Oliver to restrain the defendant, the Union Point & White Plains Railroad Company, from entering upon his land to grade the same for the road-bed of its railway pending an appeal from the amount of damages assessed in condemnation proceedings for the taking and injuriously affecting complainant's land, and payment of the same. From an order refusing a writ of injunction, plaintiff brings error.
Columbus Heard, for plaintiff in error.
H. T Lewis and John C. Hart, for defendant in error.
This company was chartered under the general railroad law, the act of 1881, found in the Code, § 1689 a et seq., its route being located in part upon lands occupied and claimed by Oliver. Before any entry was made upon said lands, the parties proceeded to have the value and the damages assessed by assessors, as provided in section 1689 l. The assessors fixed the compensation at $225, and both parties appealed from the assessment to the superior court, the company giving bond as required by that section. When the work of grading the road approached very near to Oliver's premises, he gave notice not to enter upon the same. The president of the company announced his determination to enter and continue the work as soon as the place was reached in the progress of grading the line. Thereupon Oliver brought his petition for an injunction, praying that an entry upon the land, for the purpose of grading the railroad, or for any other purpose, might be restrained until the damage to the same should be ascertained and paid. The answer, which was sworn to positively by the president of the company, set up among other things, that before the company offered to construct the road-bed upon the land, or to do any work thereon, it tendered to the plaintiff the amount of the assessment, which he refused to take or to name any amount he thought adequate compensation. The answer also brought in question the plaintiff's title to the premises, and at the hearing evidence was submitted tending to show that the legal title was outstanding in another person, not a party to the proceeding. At the hearing an order was passed declaring that the injunction prayed for be refused, provided the defendant, within 10 days, would enter into bond with good security to pay all the damages that might be eventually recovered on the final trial of the case, but that on failure to give such bond the writ of injunction issue. To this order Oliver, the plaintiff, excepted.
The right of the company to enter and prosecute the work of construction on or through the plaintiff's land is rested upon the general railroad law, (Code,§ 1689 l) which declares that the entering of an appeal and the proceedings thereon shall not hinder or in any way delay the work, or the progress thereof, but the same may proceed, without let or hindrance, from the time said condemnation proceedings are begun. The case of Chambers v. Railroad, 69 Ga. 320, is a virtual adjudication that this provision of the law is incompatible with the constitution if it is to be construed as attempting to confer the right of proceeding with the work pending an appeal by the company without first complying with the constitutional requirement of paying just and adequate compensation. The method for assessing value and damages prescribed by the charter of the Cincinnati & Georgia Railroad, (section 11, Acts 1880-81, pp. 254-256,) was in all respects substantially identical with that laid down in the general railroad law; and the provision for prosecuting the work pending an appeal was the same. We consider the decision in that case (there being neither payment nor tender) completely sound, and it is our purpose to adhere to it firmly and faithfully. In the language of Mr. Justice SCHOLFIELD, in Mitchell v. Railroad & Coal Co., 68 Ill. 289: Nothing can be plainer or more explicit than the terms of our constitution. "Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." Code, § 5024. Adjudications in other states upon cognate terms, such "as first or previously made, deposited," etc., are numerous. Browning v. Transportation Co., 4 N.J.Eq. 47; Mettler v. Railroad Co., 25 N.J.Eq. 214; Redman v. Railroad Co., 33 N.J.Eq. 165; Eidemiller v. Wyandotte, 2 Dill. 376; Walther v. Warner, 25 Mo. 277; Ring v. Bridge Co., 57 Mo. 496; Henry v. Railroad Co., 10 Iowa 540; Cox v. Railroad Co., 48 Ind. 178; Mitchell v. Railroad & Coal Co., 68 Ill. 286; Railroad Co. v. Callender, 13 Kan. 496; Ray v. Railroad Co., 4 Neb. 439; Bohlman v. Railroad Co., 30 Wis. 105; Dimmick v. Brodhead, 75 Pa. St. 464; Railroad Co. v. Piel, 8 S.W. 449; Asher v. Railroad Co., Id. 854. Pierce, R. R. (Ed. of 1881,) p. 166. And see 2 Wood, Ry. Law, § 246. No constitution has or can have a plainer provision on this subject than our own, and the provision is one not to be violated or evaded either by the legislature or the courts.
The method of ascertaining what is just and adequate compensation is subject, within certain limits, to legislative discretion. To such proceedings in the exercise of the power of eminent domain the constitutional guaranty of trial by jury does not extend, there being in our constitution no express provision so extending it. Mills, Em. Dom. § 91, and cases cited; Proff. Jury,§ 104; Cooley, Const. Lim. (5th Ed.) 697. The supreme court of Kansas, in Railroad Co. v. Railroad Co., 28 Kan. 453, held that it was optional with the legislature to make assessment by...
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