Bridge v. Harris

• Decision Date: 31 January 1871
• Citation: 42 Ga. 500
• Parties: BENJAMIN LOUGH BRIDGE, plaintiff in error. v. W. G. HARRIS, defendant in error.
• Court: Georgia Supreme Court

42 Ga. 500

BENJAMIN LOUGH BRIDGE, plaintiff in error. v. W. G. HARRIS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Private Property for Public Use. Mills. Before Judge Parrott. Murray Superior Court. May Term, 1870.

Harris sued Loughbridge for backing the Conasauga River upon his land.

Loughbridge pleaded that he owned land on both sides of the river below Harris, was erecting a mill-dam, which rendered such overflow necessary, that Harris refused to have his damages appraised as provided by Act of 19th of March, 1869, when he proceeded to have it done as therein provided, tendered Harris the amount assessed and he refused to accept it, and that, he was ever ready to pay said amount. Upon demurrer, the Court dismissed said plea. That is assigned as error.

D. A. Walker, J. A. W. Johnson, for plaintiff in error. Constitution of 1868 does not prohibit taking private property *for public use without compensation. Eminent domain, and when and by whom exercised: R. Code, sees. 2196, 2197, 2198; 9th Ga. R., 341. 344, 354-5; 9th, 41; 2 Kent\'s Com., 341; 3d Ga. R. 338; 1st Redf. on R. Ways, 258. Mills are for public use and regulated by law: R. Code, sees. 1466, 1467, 1468.

McCamy & Shumate, for defendant. Act of 1869 void because itdoes not provide for just compensation: 30th Ga. R., 43; 37th, 113; 33d, 556, 629; 11th Leih. R., 78; U. S. Const., Art. V. Compensation must be paid before property taken: 1 Kent\'s Com., 339 and note; 26th Wend. R., 497; 3 Howard\'s Miss. R. — Thompson v. G. J. R. R. Co.; 1st Kelly, 530; 9th Ga. R., 341; 19th, 479; 33d, 556, 629. Act contains matter not in title: Constitution of Ga., 1868, Art. III., Sec. 4, p. 5; 12th Ga. R., 43; 4th, 26. Eminent domain delegated to individual void: 1st B. Com.. 339.

LOCHRANE, C. J.

This was an action on the case brought by Harris for the overflow of water upon his land, caused by the mill-dam erected by Loughbridge. When the case came on for trial, the Judge below sustained the demurrer to the plea filed by the defendant, under the Act of 1869, in bar of the action. There is no question as to the merits of the case before us.

The naked question is the construction of the Act of 1869. That Act is entitled "An Act to encourage and protect the building of mills and other manufacturing establishments in this State." This Act provides that the provisions of the fourth section of an Act to incorporate the Zebulon Branch Railroad Company, shall be extended to all manufacturing companies and individuals, whether corporate or not, provided the company or individual owns both banks of the stream upon which the mills are to be erected, and amends the Act by substituting the Ordinary of the county where the land lies for the Justice of the Inferior Court, and limits *the amount of damage done to land owners to that occasioned by the overflowing of water by such mill, etc. The Act of which this Act was amendatory, is found in Acts 1851-2, page 138, and provides for the taking of such strips of land as may be deemed necessary for the construction and convenience of the railroad. It also provides for the assessment of damages by the selection of certain appraisers in case of disagreement, whose award is to have the effect of a judgment, and may be enforced by execution, with the right of appeal, etc.

The parties in this case, by their plea, set up the award of the appraisers and tender of the damages. To this plea the plaintiff demurred. The Court sustained the demurrer, and thus the validity of the Act of 1869 is directly brought in question by the pleadings and judgment. Article III., section 5, part 1, of our present Constitution, confers large powers upon the General Assembly of this State; and the argument is, that the Legislature, in the exercise of this plenary power, had full and unquestioned constitutional authority to pass the Act in question; and, inasmuch as the power to grant is vested with them, the right will not be abridged by any judicial interference.

It is not our purpose to enter into any elaborate discussion of the constitutional questions involved, at least, not farther than to lay down the principles of law which we hold applicable and important to the decision of the question. It is a doctrine of immutable justice that cannot be controverted or disregarded, that to appropriate property by legislative act, two things must...