Benton v. State Highway Dept.

• Decision Date: 19 February 1965
• Docket Number: No. 22848,22848
• Citation: 220 Ga. 674,141 S.E.2d 396
• Parties: L. O. BENTON, Jr., et al. v. STATE HIGHWAY DEPARTMENT.
• Court: Georgia Supreme Court

Page 396

141 S.E.2d 396

220 Ga. 674

L. O. BENTON, Jr., et al. v. STATE HIGHWAY DEPARTMENT.

No. 22848.

Supreme Court of Georgia.

Feb. 19, 1965.

Syllabus by the Court.

The legal question for decision in the present case is not within the jurisdiction of the Supreme Court under the Constitution, Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704) and the writ of error is remanded to the Court of Appeals.

L. O. Benton, Jr., and Mrs. Rosalind Benton Fitzatrick filed their response in a condemnation proceeding by the State Highway Department, wherein it was alleged that the declaration of taking 'is dated the 21st of August, 1964 and was filed in this court August 25, 1964, * * *' It was alleged that: The petition is presented and filed within 30 days of the date of service, as provided by Ga.L.1962, Ex.Sess., Sept.-Oct., p. 37 (Code Ann.Supp. § 36-1303). The respondents seek to vacate and set aside the declaration of taking and the judgment and order of the court entered thereon, dated August 21, 1964. The oroperty sought to be acquired is not to be used for State-aid road purposes, but is, in fact, being condemned for use by the Southern Natural Gas Company, and the State Highway Department has no power to condemn land on behalf of the Southern Natural Gas Company. In attempting to acquire the described property the State Highway Department is improperly using its powers under the Act of 1961 (Ga.L.1961, pp. 517-529), as amended, and is invoking the Act beyond the privileges conferred therein, in that it seeks to acquire property for another use than for State-aid road purposes. The prayers were: that the petition of the State Highway Department be stricken and dismissed, in that it states no cause of action under the statutes upon which it is based; that the declaration of taking be set aside, vacated, and annulled; that the socalled award be declared null, void, and of no effect; that the State Highway Department, its agents, officers, and employees, and any person purporting to act pursuant to any authority of the State Highway Department, be restrained and enjoined from taking possession of, or in any manner interfering with, the lands of the respondents, or any right of the respondents therein; for process, rule nisi, and other relief.

Service was acknowledged on this petition by counsel for the State Highway Department on September 10, 1964, and on the same date the judge issued a rule nisirequiring the State Highway Department to show cause on September 18, 1964, why the prayers of the petition should not be granted. On October 13, 1964, the judge entered an order as follows: 'The foregoing motion coming on for a hearing, and after hearing the evidence and argument of counsel, the same is hereby overruled and denied.'

The respondents Benton and Fitzpatrick by writ of error excepted to the order overruling and denying the petition to vacate, annul, and set aside, and to the prior order granting possession of the property. In their bill of exceptions the respondents, through their counsel, certified that jurisdiction of the cause was in the

Court of Appeals of Georgia, and not the Supreme Court of Georgia, because it is an action involving

condemnation of property and the construction of the statute 'and does not involve any question to which the exclusive jurisdiction is vested in the Supreme Court of Georgia.'

On January 6, 1965, the Court of Appeals transferred the cause to this court, it being recited in the order that, 'In addition to other equitable relief, it [the petition] seeks a restraining order and injunction against the State Highway Department of Georgia, * * *' and that 'the prayers of the restraining order and injunction have not become moot by any manner whatsoever.'

Bloch, Hall, Groover & Hawkins, Denmark Groover, Jr., Macon, for plaintiffs in error.

Eugene Cook, Atty. Gen., Richard L. Chambers, E. J. Summerour, Asst. Attys. Gen., Atlanta, Benson Ham, Forsyth, for defendant in error.

HEAD, Presiding Justice.

Where the State Highway Department brings a proceeding in rem to condemn described property, the owners of the Jeffrey McElreath Mfg. Co. v. Hill, 212 to the land in the condemnation proceeding. Jeffrey McElreath Mfg. Co. V. Hill, 212 Ga. 183, 91 S.E.2d 337; Fulton County v. Aronson, 216 Ga. 497, 117 S.E.2d 166; State Highway Dept. v. McCurdy, 217 Ga. 731, 124 S.E.2d 630.

In the present case the owners of the land, desiring to contest the right of the State Highway Department to condemn the land described, filed their motion to vacate and set aside in the condemnation proceeding, as authorized by Ga.L.1961, pp. 517, 520, as amended by Ga.L.1962, Ex. Sess., Sept.-Oct., p. 37 (Code Ann.Supp. § 36-1303). This motion prayed that the State Highway Department be temporarily and permanently restrained and enjoined from taking possession of, or interfering with, their land. No injunction was granted, and on the hearing the petition or motion was dismissed. The application for a supersedeas was denied. The prayers for injunction were therefore effectively and completely eliminated as an issue in the cause, since no assignment of error appears in the bill of exceptions on the refusal of the court to grant...