Atlantic & B.R. Co. v. Penny

• Citation: 46 S.E. 665,119 Ga. 479
• Parties: ATLANTIC & B. R. CO. v. PENNY.
• Decision Date: 13 February 1904
• Court: Supreme Court of Georgia

46 S.E. 665

119 Ga. 479

ATLANTIC & B. R. CO. v. PENNY.

Supreme Court of Georgia

February 13, 1904

Syllabus by the Court.

1. Before this court can consider exceptions pendente lite, an assignment of error thereon must be made in the bill of exceptions, or filed in this court on or before the call of the case. The failure to assign error in one of these methods will result in a dismissal of the writ of error, whether it be sued out upon a main or a cross bill of exceptions.

2. In a proceeding under Civ. Code 1895, § 4657 et seq., for the purpose of acquiring private property for public purposes the sole question to be passed upon by the assessors or a jury in the superior court on appeal is the amount of compensation to be paid. Whether the quantity of land sought to be taken is necessary and proper for the purpose for which it is sought is a question not involved in this proceeding.

3. Under the general railroad law in the present Code the railroad company is allowed to appropriate for a right of way a strip of land not exceeding in width 200 feet. Whether a less quantity shall be taken for this purpose is left to the discretion of the company.

4. Under the general railroad law referred to in the preceding note, a railroad company is authorized to take, for the purpose of cuttings and embankments and for obtaining gravel and other material, as much land as may be necessary for these purposes, and it is authorized to acquire, for stations, terminal facilities, and the like, such quantity of land as may be necessary and proper for these purposes; the company being vested with a discretion to determine, in the first instance, how much land is necessary. If the company abuses the discretion thus vested in it, a court of equity may by injunction so restrain it as to keep it within the limits of its charter.

Error from Superior Court, Dooly County; Z. A. Littlejohn, Judge.

Proceedings by the Atlantic & Birmingham Railroad Company against Z. T Penny. From the judgment, both parties bring error. Judgment on bill of exceptions of railroad company reversed. Writ of error sued out by defendant dismissed.

D. A R. Crum, for plaintiff.

J. L. Sweat, J. G. Jones, and W. F. George, for defendant.

COBB J.

The Atlantic & Birmingham Railroad Company instituted proceedings to condemn "two hundred and fifty (250) feet right of way, sixty feet on the east, and one hundred and ninety feet on west, side of the center line," through a described tract of land, the property of Z. T. Penny. A majority of the assessors chosen in the manner prescribed by law filed an award fixing the damages to be paid at $400. The third assessor refused to agree to this, and filed with the award a writing stating that in his opinion the amount should have been $500. Penny entered an appeal from the award of the assessors to the superior court. When the case came on for a hearing in the superior court Penny filed a written motion to dismiss the entire proceeding, upon the ground that the amount of land sought to be taken was not necessary for the right of way, stations, terminal facilities, cuttings, embankments, and other purposes for which the railroad company could lawfully take private property; that under its charter 100 feet was all that could be condemned for a right of way, and that 50 feet on each side of the track would be ample for all of the legitimate purposes of the company; and that the real purpose of the condemnation was to secure property to be leased for factories, plants, business houses, etc. The plaintiff then amended its proceedings by alleging that the land sought to be condemned was necessary and required, not only as a right of way, but for a freight and passenger depot and purposes therewith connected, including station grounds, yards, tracks, warehouses, etc. The court allowed the amendment, and then overruled the motion to dismiss. Penny filed exceptions pendente lite to these rulings. The case proceeded to trial, and resulted in a finding by the jury that the company was entitled to condemn only 200 feet, and fixing the value of the land embraced within these limits at $275 per acre. Judgment was entered on this verdict. The company made a motion for a new trial, on the ground that the verdict was contrary to law and the evidence. The court overruled the motion, and the company excepted. Penny filed a paper which recited the demurrer to the proceedings, the trial of the case, the motion to dismiss, the amendment by the railroad company, and the rulings of the court on the questions thus raised. The paper also recited that exceptions pendente lite had been filed to these rulings, and specified, as parts of the record to be transmitted, the motion to dismiss, the amendment, order of the judge thereon, and exceptions pendente lite. This paper was certified by the judge as a bill of exceptions, but it did not contain any assignment of error on any ruling or decision of the court or on the exceptions pendente lite, nor was error assigned on these exceptions in this court after the case reached here.

1. Whether the paper filed by Penny be considered as a cross-bill of exceptions, or as an independent bill, it will have to be dismissed for want of any assignment of error. Jackson v. Fitzpatrick, 114 Ga. 364, 40 S.E. 234. Even if it had contained an assignment of error upon the exceptions pendente lite, it would have been defective as an independent bill, because in such bill of exceptions "there must be some legal assignment of error on what transpired at the trial term, in order to bring up an assignment of error upon exceptions pendente lite filed at the appearance term." Barge v. Robinson, 115 Ga. 41, 41 S.E. 258, and cit. The exceptions pendente lite not being before us, it cannot be determined in the present case whether proceedings instituted under Civ. Code 1895, § 4657 et seq., for the purpose of condemning private property for a public use, are amendable at all, or whether in the present case they were amendable in the particular indicated in the foregoing statement of facts.

2-4. Private property cannot be taken for public use unless there is a necessity for such taking; for the taking of property when not at all necessary for a public purpose, or the taking of more property than is necessary for a given public purpose, is in effect a taking for private use. Randolph on Em. Dom. § § 185, 186; 10 Am. & Eng. Enc. L. (2d Ed.) 1057; 3 Ell. R. R. § 952; New Central Coal Co. v. Coal & Iron Co., 37 Md. 537, 539; Matter of N.Y. Cen. R....