Botts v. Southeastern Pipe-Line Co.

• Decision Date: 21 June 1940
• Docket Number: 13269
• Citation: 10 S.E.2d 375,190 Ga. 689
• Parties: BOTTS v. SOUTHEASTERN PIPE-LINE CO.
• Court: Georgia Supreme Court

10 S.E.2d 375

190 Ga. 689

BOTTS v. SOUTHEASTERN PIPE-LINE CO.

13269

Supreme Court of Georgia

June 21, 1940

Rehearing Denied July 29, 1940.

Syllabus by the Court.

1. The power of eminent domain is inherent in every sovereignty but is dormant until the lawmaking body sets it in motion. As the legislature cannot in every case supervise the condemnation, it may confer the power upon agencies.

2. Since the power to take private property for a public use or benefit is in derogation of the right of the citizen statutes under which it is claimed must be strictly construed; and it is generally held that the power is not conferred unless an intention to that effect appears in clear and express terms or by necessary implication.

3. In view of the principle that private property may not be taken or damaged for public purposes without just and adequate compensation being paid, the subject of eminent domain as a legislative proposition naturally consists of two general subdivisions: (1) The power to be conferred; (2) the method or procedure for ascertaining the amount of compensation to be paid, that is, for exercising the right.

4. The Code of 1933, § 36-202, declares: 'The method of condemnation of property and assessment of damages hereinafter provided shall apply to condemnation by cities, counties, railroads, telegraph, canal, mining, and waterworks companies, drainage by counties, tramroads, lighthouses, and beacon constructions, and to all persons or corporations having the privilege of exercising the right of eminent domain. The method herein referred to shall also apply to persons who are or may be engaged in constructing or operating pipe lines for the transportation and/or distribution of natural or artificial gas; and upon persons who are or may be engaged in furnishing natural or artificial gas for lighting, heating, and/or power purposes.' By an act approved March 27, 1937 (Ga.L.1937, p. 432), the foregoing section was amended by adding the following words: 'and for the purpose of running pipe-lines for the transportation and/or distribution of petroleum products.' The plaintiff in the present case sought injunction to restrain the defendant from condemning a right of way over the plaintiff's land for the purpose of constructing a pipe line to be used in the transportation of gasoline. The defendant claimed the right of eminent domain in virtue of the act of 1937, considered with the statute amended thereby. Held, that none of these laws confers the power of eminent domain upon any person or class of persons for any purpose, but they relate only to method of exercising the power where it otherwise exists. No statute of this State having conferred the power of eminent domain on the defendant pipe line company, the court erred in refusing an interlocutory injunction.

A. B. Conger, of Bainbridge, for plaintiff in error.

T. M. Cunningham and A. R. Lawton, Jr., both of Savannah, for parties at interest not parties to record.

Vance Custer, of Bainbridge, Marion Smith, A. Steve Clay, and Hirsch, Smith & Kilpatrick, all of Atlanta, for defendant in error.

BELL Justice.

On January 10, 1940, the Southeastern Pipe-Line Company served on Miss Ruth V. Botts a written notice of its intention to condemn a right of way or easement fifty feet in width across a described tract of land in Decatur County, Georgia, owned by Miss Botts. The notice stated: The Southeastern Pipe-Line Company is a corporation existing under the laws of the State of Delaware, and is authorized to do business and is doing business in the State of Georgia; 'said corporation is constructing a pipe line in Decatur County, Georgia, for the purpose of transporting and distributing petroleum products, and * * * will conduct the business of transporting and distributing gasoline and petroleum products in said line as a common carrier, * * * being subject to the jurisdiction of the Interstate Commerce Commission as a common carrier.' The notice pointed to the matter of assessing damage, and stated that it was given in pursuance of 'chapter 36' of the Code of Georgia and laws amendatory thereof. Instead of acquiescing and naming an assessor as requested, Miss Botts, who may hereafter be referred to as plaintiff, filed a suit in equity, challenging the company's right to proceed as it proposed to do, and seeking an injunction. By the allegations in her petition she presented, among others, the following contentions: (1) The Southeastern Pipe-Line Company has no authority under the law of Georgia to exercise the power of eminent domain; (2) the charter of the company does not authorize it to exercise such power; (3) the company is not authorized by its charter to engage in the business of a common carrier or in any manner to devote its property to a public use; (4) the pipe line will be devoted to a private and not to a public use; and the proposed condemnation is for private purposes only. The company, which may be hereinafter referred to as the defendant, filed an answer denying the plaintiff's allegations so far as they controverted its right to proceed with the proposed condemnation. The plaintiff later amended her petition. No demurrer was filed by either party. On interlocutory hearing the judge dissolved a restraining order which had been granted on presentation of the petition, and denied an injunction. To this judgment the plaintiff excepted.

The bill of exceptions contains a statement of the evidence heard by the judge. The plaintiff introduced in evidence the certificate of incorporation of the Southeastern Pipe-Line Company, showing 'that said corporation's principal office was in the City of Wilmington, State of Delaware; that the nature and object and purpose of said corporation were to lay, construct, maintain, lease, purchase and operate a pipe line or pipe lines; to transport for hire by means of such pipe line petroleum and all products derived therefrom or similar thereto; to acquire, own, and use rights of way and such other property as may be incidental to, necessary, or useful in the establishment, maintenance, operation, and conduct of such business; to acquire, own, lease, construct, maintain, and operate pumping stations, compressing stations, terminals, boosters, telephone and telegraph lines, and all other facilities necessary or useful in carrying out the objects and purposes of said corporation, * * * and in general to exercise all of the rights and powers conferred by the laws of Delaware upon corporations.'

It appeared from other evidence that all of the capital stock had been subscribed for and paid in by two corporations, the Gulf Oil Corporation owning fifty-two and one-half per cent., and the Pure Oil Company owning the balance. Officers of the pipe line company testified that it was the purpose of the company to run a continuous line of pipe from Port Saint Joe, Florida, on the Gulf Coast, to Chattanooga, Tennessee, through the State of Georgia, and to conduct the business of a common carrier, interstate only, in transporting gasoline through such pipe line; that gasoline will be so transported for the two companies owning the capital stock, but that this will require only about half the capacity of the pipe line, and 'It is proposed or contemplated that the facilities of the pipe line will be available to all persons and firms and corporations.' There was testimony to the effect that other companies besides those owning the stock had 'evidenced their intention to use the facilities of the Southeastern Pipe Line Company,' but that as yet no others have arranged for such transportation. The president of the company testified that in laying and constructing the pipe line 'we would have to go under and across the tracks and right of way of the Seaboard Air-Line at several places, and also the Atlantic Coast Line Railroad, the Central of Georgia Railroad, the Southern Railway Company, the A., B. & C. Railroad Company, and the A. & W. P. Railroad Company; but I am not sure about the L. & N. It is true that our company, or the construction company, has made application to each and all of said railroads for permission to go under their tracks and across the right of way, and that such applications have been refused. It is true that in the construction of the pipe line through Georgia the same would necessarily go under the surface and across the road-bed and right of way of State highways in approximately twenty-five different places. State Highway No. 1 would be traversed by our line just south of Bainbridge, and State Highway No. 38, running across the southern part of Georgia, would likewise be traversed by the pipe line. It is my understanding that in the construction of the pipe line it will go under the surface and across the right of way of those highways.' The same witness further testified: 'The Interstate Commerce Commission will have jurisdiction over the pipe-line company and will have jurisdiction over the rates which are promulgated by the pipe-line company, which are similar to freight rates.' Still other facts are shown by the record, but the foregoing is deemed a sufficient statement.

We think the case should be determined adversely to the defendant pipe line company upon the question of its authority to exercise the power of eminent domain; and in this view other questions will not require decision. The question of authority has several branches. First, has the General Assembly of this State conferred the power of eminent domain upon persons or corporations engaged in the transportation of petroleum products by pipe line? It is conceded by the defendant company that authority has not been so conferred, unless by an act passed in the year 1937, to which further reference will be made later in this opinion....