Austin Enterprises, Inc. v. DeKalb County
| Citation | 149 S.E.2d 461,222 Ga. 232 |
| Decision Date | 27 May 1966 |
| Docket Number | No. 23497,23497 |
| Parties | AUSTIN ENTERPRISES, INC. v. DeKALB COUNTY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. (a) The proceeding by the county to condemn a right of way for sewer purposes was for a public purpose, not a purely private one.
(b) The county had authority to condemn property for that purpose.
2. The ground complaining of the admission of certain testimony was without merit.
DeKalb County filed an in rem proceeding under Code Ch. 36-11, as amended Ga.L. 1937-38, Ex.Sess., p. 251, against Austin Enterprises, Inc., in which the county sought to condemn as a right of way a strip of land for sewer purposes across the property of Austin Enterprises. The condemnee filed a response in which it alleged: that Timberland Developers, Inc., is a private corporation organized for pecuniary gain and owning an adjoining subdivision; that Timberland desires to construct a sewer across the property of the respondent; that the respondent objected; that the proposed sewer runs 225 feet across respondent's lots; that such sewer would be on pillars at least 5 feet above ground, which will irreparably destroy the value of respondent's lots; that DeKalb County is not going to build the sewer but Timberland will construct the sewer at its expense and this easement is for the benefit of Timberland; that Timberland agreed in writing to pay all costs of the condemnation proceeding; that DeKalb County has never sought to construct a sewer over the right of way; that this is a scheme and device by Timberland to use DeKalb County for the purpose of taking private property of one citizen for the personal benefit and gain of another private citizen; that the resolution to condemn by the county commissioners is an ultra vires act on their part; that it is unreasonable, arbitrary and an abuse of discretion by the county commissioners. The response prayed that Timberland be made a party and that DeKalb County be restrained and enjoined from the prosecution of the condemnation proceeding.
Timberland was made a party to the case. The cause then came on for interlocutory hearing and after hearing evidence by the condemnee and the condemnor the trial judge dissolved the temporary restraining order and denied the condemnee's prayer for an interlocutory injunction. The condemnee, Austin Enterprises, appeals from that judgment.
Stone & Stone, Noah J. Stone, Hugh W. Stone, Atlanta, for appellant.
Robert E. Mozley, George P. Dillard, Herbert O. Edwards, Swertfeger, Scott & Pike, W. Fred Orr, Decatur, for appellees.
1. (a) The principal contention made by the appellant in its enumeration of errors is that the evidence demnaded a finding in its favor because it showed the taking was for a purely private purpose, not a public one. The appellant argues the action on the part of the county was arbitrary, capricious and in violation of the law.
While at the present it is true that the sewer connector line would serve only one owner, the developer of the subdivision, when the area was developed it was contemplated that many customers would be served. It could not be considered arbitrary on the part of the county commissioners to desire to extend the sewerage system so as to make the system available to additional customers and thereby increase the volume and value of the county sewerage service to its citizens and, incidentally, obtain increased revenue for the county. Be that as it may, '' Hightower v. Chattahoochee Industrial Railroad, 218 Ga. 122, 124-125, 126 S.E.2d 664, 666; Harrold Bros. v. Mayor & etc. of Americus, 142 Ga. 686(1), 688, 83 S.E. 534; Rogers v. Toccoa Electric Power Co., 163 Ga. 919 (4b), 137 S.E. 272. As pointed out in a railroad condemnation case, '(t)he fact that the track may be for the present benefit of only one industry, while important in determining the character of the use, does not necessarily negative the public character of the use.' Railroad Commission of Ga. v. Louisville & etc. R. Co., 148 Ga. 442, 445, 96 S.E. 855, 857. See Bradley v. Lithonia Arabia Mountain R. Co., 147 Ga. 22(2), 92 S.E. 539.
It is also urged that the record shows Timberland agreed to 'reimburse DeKalb County for all expenses incurred in the condemnation proceedings against (the condemnee) * * * said expenses to include publication fees, appraiser's fees, attorney fees, court...
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