Chambers v. The Cincinnati

• Decision Date: 30 September 1882
• Citation: 69 Ga. 320
• Parties: Chambers. vs. The Cincinnati and Georgia Rail, road.
• Court: Georgia Supreme Court

69 Ga. 320

Chambers. vs. The Cincinnati and Georgia Rail, road.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

[On account of providential cause, Jackson, Chief Justice, did not preside is this case]

Private property cannot be taken or damaged for public purposes without just and adequate compensation being first paid. Therefore, when the question of determining the amount of damages which would accrue to a property owner by locating the right of way of a railroad across his land had been submitted to assessors, under the charter of the road, and from their decision the company had entered an appeal, it could not proceed, pending such ease, to construct its road across the land; and an effort to do so would be restrained by injunction.

November 18, 1881..

Railroads. Constitutional Law. Damages. Before Judge Underwood. Floyd County. At Chambers, May 1, 1882.

To the report contained in the decision, it is only necessary to add that Chambers filed his bill to enjoin the Cincinnati and Georgia Railroad Company from proceeding to build its road through his land pending an appeal from the award of assessors fixing the amount of damage to his land by locating the road thereon. The injunction was denied, and complainant excepted.

D. S. Printup; Forsyth & Hoskinson, for plaintiff in error.

Wright, Meyerhardt & Wright, for defendant.

Speer, Justice.

The plaintiff in error seeks this injunction, which. was refused by the court below, to restrain the defendant, its agents and employes, from entering on, using and building its railroad upon a certain right of way over said lands of complainant until just and adequate compensation has been paid therefor, as is provided in article i, section 3, paragraph i of the constitution of this state. The words of this article are as follows:

" Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid."

It is conceded by the bill and answer that this is the private property of complainant; that a right of way under authority of its charter has been surveyed and located by the defendant over the lands of complainant, extending through the whole body, and that defendant is proceeding to erect trestle works, and preparing to build and construct its road on said right of way through said lands; thai the parties having failed to agree upon the measure of compensation for said right of way, under the provisions of its charter, the defendant, to settle the question of damages when parties cannot agree, gave notice to complainant, and each of the parties selected an assessor, and those two a third; and that the board of assessors thus selected, after examining the right of way and hearing evidence thereon, as to the damages as well as the incidental benefits from the location of said road to com. plainant's property, awarded that respondent should pay complainant the sum of $2,500.00 for damages for said right of way, and then to occupy and build on said right of way. The respondent refused to accept said ward, gave notice thereof and entered an appeal to the superior court from said award.

It is a primary requisite in the appropriation of lands for public purposes that compensation shall be made therefor, and this compensation must be pecuniary in its character, because it is in the nature of a payment for a compulsory purchase. Cooley Cons. Lim., 699. It amounts to nothing more than power to oblige him to sell and convey, when the public necessities require it. 6 Cranch., 145; 20 Johns., 103; 4 N. Y., 419; 6 Ga., 131.

" The time when the compensation must be made may depend upon the peculiar constitutional provisions of the state. In some of the states, by express constitutional direction, compensation must be made before the property is taken. It is true, private property may be entered upon and temporarily occupied for the purpose of a survey and other incipient proceedings with a view to determining whether the public needs require the appropriation or not, and if so, what the proper location shall be; when, however, the land has been viewed, and it is determined to appropriate it, the question of compensation is to be considered."

When private property is sought to be appropriated by a private corporation, acting under the authority of the state, it is certainly proper, and it has sometimes been questioned, whether it was not absolutely essential, even in the absence of constitutional provision, that payment be actually made before the owner could be divested of his freehold. 11 Wend., 149; 13 Gray, 31. Chancellor Kent has expressed the opinion that compensation and appropriation should be concurrent. He says: "The settled and fundamental doctrine is that government has no right to take private property for public uses without giving just compensation, and it seems to be necessarily implied that the indemnity should be, in cases which will admit of it, to be previously and equitably ascertained and be ready for reception concurrently in point of time with the actual exercise of the right of eminent domain." 2 Kent, 339, note.

While this is not an inflexible rule, yet it is so just and reasonable that statutory provisions for taking private property very generally make payment precede or accompany the appropriation, and by several of the state constitutions this is expressly required. The constitution of Florida provides that private property shall not be taken or applied to public use, unless just compensation be first made therefor. So,...