Atlanta Terra Cotta Co. v. Georgia Ry. & Elec. Co.
| Decision Date | 19 April 1909 |
| Citation | 64 S.E. 563,132 Ga. 537 |
| Parties | ATLANTA TERRA COTTA CO. v. GEORGIA RY. & ELECTRIC CO. |
| Court | Georgia Supreme Court |
Rehearing Denied May 12, 1909.
In condemnation proceedings under the statute regulating the exercise of the right of eminent domain by a railroad company, the assessors can only determine the amount of compensation to be paid, and cannot pass upon the legal power of the company to institute such proceedings, or determine whether or not the quantity of land sought to be taken is necessary for public purposes. The remedy of the landowner is to apply to a court of equity to enjoin the condemnation proceedings, if they are unauthorized, or to enjoin the condemnation of such land as is not necessary for such public purpose.
(a) On appeal from the award of assessors appointed in pursuance of the statute in such proceedings, the issue cannot be broadened so as to raise the questions above indicated.
(b) Nor, after having appointed an assessor and entered into an arbitration and accepted money awarded to him by the assessors, will the landowner be heard for the first time after verdict, on appeal, to complain that the evidence failed to show an effort by the condemnor to acquire the property from him by contract before commencement of the proceedings to condemn.
(c) Upon review of the decision in Piedmont Cotton Mills v Georgia Ry. & Electric Co., 131 Ga. 129, 62 S.E. 52, as to the points stated in the first division and subdivision "a" of this headnote, it is affirmed.
[Ed Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 614 619, 666, 753, 765-768; Dec. Dig. §§ 198, 238, 255, 274. [*]]
Where a notice, which was served on a landowner as the basis for a proceeding to condemn land for a right of way of a railroad, under Civ. Code 1895, § 4657 et seq., recited that the property was "sought to be condemned for the purpose of building, maintaining, and operating thereon a railroad, side tracks, terminals, and necessary connections and turnouts," such a notice was not subject to special demurrer on the ground that "it does not appear thereby for which of the purposes specified in said proceedings said plaintiff seeks to condemn this defendant's property, whether for a right of way, or side track, or connections and turnouts," filed on the trial of an appeal entered by the company from an award of assessors in favor of the landowner, who had received the amount so awarded.
[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 509-518; Dec. Dig. § 191. [*]]
On the trial of a case the court ordered the witnesses to be sequestered. Counsel for defendant, which was a corporation, requested that both its president and vice president should be allowed to remain in the courtroom to assist in the trial, stating that the president was manager of the company's office and business affairs and that the vice president was manager of its manufacturing plant, and that the presence of both was necessary to assist in the trial. The court inquired if both were to be used as witnesses, and, being answered in the affirmative, refused to grant the request, and required the defendant to elect which should remain; the other being excluded from the courtroom. Held, that there is nothing in the record to show an abuse of discretion on the part of the presiding judge in such ruling.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 101-105; Dec. Dig. § 41. [*] ]
While it may have been unnecessary for the court to charge the jury on the subject of the right of the condemnor to exercise the power of eminent domain, the charge on that subject was harmless to the defendant.
[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 686; Dec. Dig. § 262. [*]]
On the trial of an appeal from the award of assessors in a proceeding to condemn a right of way for a railroad, it was error to charge that, "if the injury be small or the mitigating circumstances be strong, nominal damages only are given," and that, "if the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrongdoer."
[Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. §§ 93, 149. [*]]
It was inaccurate, on the trial of an appeal in such a proceeding, for the presiding judge to inform the jury that use and occupation for railroad purposes passes to the condemning party "for the duration of its charter, in this case conceded to be 101 years."
[Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 321. [*]]
Where land was sought to be condemned for a right of way of a railroad, on the trial on an appeal to the superior court from the award of assessors as to the property sought to be taken, the measure of recovery was the fair market value. If it contained valuable clay deposits, that was a proper subject for consideration in determining such value; but there would not be a recovery both for the value of the land and for the clay in it as two separate items.
(a) There was no error in refusing to charge that "the defendant is entitled to recover from the Georgia Railway & Electric Company the fair market value of the property taken, the land and also the clay in the land, if there be any, as such value may appear from the sworn evidence in the case."
[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 353; Dec. Dig. § 131. [*]]
Other assignments of error, relating to the charge of the court and rulings touching the admissibility of evidence, were not such as to require special reference or to necessitate a reversal. As a new trial will be ordered on other grounds, it is unnecessary to deal with the objection made to the form of the verdict.
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
Condemnation proceedings by the Georgia Railway & Electric Company against the Atlanta Terra Cotta Company. From the judgment, the Terra Cotta Company brings error. Reversed.
The Georgia Railway & Electric Company commenced proceedings under Civ. Code 1895, § 4657 et seq., to condemn a right of way through a tract of land belonging to the Atlanta Terra Cotta Company. The condemnor gave notice to the landowner, assessors were appointed by each, and a third selected. They awarded as the value of the land to be taken the sum of $4,500, and that there were no consequential damages and no consequential benefits to the property of the landowner which was not taken. An appeal was taken by the condemnor. On the trial in the superior court counsel for the appellee moved to dismiss the case, on the grounds that the condemnor had not been authorized and empowered by law to exercise the right of eminent domain, that it had no right to condemn or take the land described in the proceedings, and that it did not appear that it was necessary to do so for any of the purposes specified. The motion was overruled. The notice given by the condemnor contained this clause: "You are hereby notified that whereas, you and the Georgia Railway & Electric Company cannot agree upon compensation for the property hereinafter sought to be condemned for the purpose of building, maintaining, and operating thereon a railroad, side tracks, terminals, and necessary connections and turnouts in the following described property owned by you," etc. The appellee demurred to the proceedings, "because it does not appear thereby for which of the objects specified in said proceedings said plaintiff seeks to condemn this defendant's property, whether for a right of way, or side tracks, or connections and turnouts." The demurrer was overruled, and exceptions pendente lite were filed. The jury found the following verdict: "We, the jury, find for the Atlanta Terra Cotta Company against the Georgia Railway & Electric Company the sum of $1,100." The condemnor having paid, and the defendant having received, the $4,500 which had been awarded by the assessors, the judge entered judgment reciting this fact, and that the jury had found $1,100, and thereupon adjudging that the Georgia Railway & Electric Company recover of the Atlanta Terra Cotta Company the difference, amounting to $3,400, with interest. The Atlanta Terra Cotta Company moved for a new trial, which was refused, and it excepted.
The court ordered witnesses to be sequestered, and defendant, as a corporation, requested that both the president and vice president should be allowed to remain to assist in the trial, as their presence was necessary. The court, being informed that both were to be witnesses, refused the request and required defendant to elect which should remain. Held not an abuse of discretion.
H. L. Culberson, Owens Johnson, and Spencer R. Atkinson, for plaintiff in error.
Rosser & Brandon and Walter T. Colquitt, for defendant in error.
1. The motion to dismiss the proceedings on appeal complained that under the law the Georgia Railway & Electric Company had no authority to exercise the power of eminent domain, or right to condemn and take the land in question, and that there was no necessity for taking such land, and these questions were also argued under certain grounds of the motion for a new trial. In different states of the Union the method of exercising the right of eminent domain is not uniform, and the issues which can be made in such proceedings in the several states may differ. In this state it has been held that, in condemnation proceedings under the statute, the assessors can only determine the amount of compensation to be paid, and cannot pass upon the legal power of a railroad company to institute such proceedings, or determine whether or not the quantity of land sought to be taken is necessary...
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