Commissioners of Roads and Revenues of Decatur County v. Curry
| Citation | 114 S.E. 341,154 Ga. 378 |
| Decision Date | 10 October 1922 |
| Docket Number | 3070. |
| Parties | COMMISSIONERS OF ROADS AND REVENUES OF DECATUR COUNTY v. CURRY ET AL. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
The board of commissioners of Decatur county are alone authorized to establish public roads in that county; and the ordinary of that county is without such authority.
The method of laying out public roads in that county is that prescribed in Civ. Code 1910, § 640 et seq., which must be followed by the commissioners in establishing public roads.
All persons, their overseers or agents, residing on the land through which a public road is proposed to be located, must be notified in writing of the application for the establishment of such road.
When such application is signed by a named person, with the letters "Agt." after his name, without more, such instrument is his individual application for such road.
Before one can be bound by the acts of another who assumes to represent him, due proof of the agency must be made; and before one will be estopped by the act of an agent, it must be affirmatively shown that the agent was acting within the scope of his authority.
The act of a third person in signing such application would not bind the plaintiffs through whose lands it is proposed to establish a public road, without evidence that they authorized, or afterwards assented to his act in so doing.
As the commissioners were proceeding to condemn a certain portion of the plaintiffs' lands, under Civ. Code 1910, § 5206 et seq., and when no notice was given as required by section 642, the trial judge properly granted the interlocutory injunction prayed for.
The last ruling makes it unnecessary to consider any of the other errors alleged by the plaintiffs in error.
Additional Syllabus by Editorial Staff.
Though one was acting for plaintiffs in looking after their farm and returning their lands for taxation, such agency would not authorize him to sign an application for the laying out of a public road through their lands.
Error from Superior Court, Decatur County; R. C. Bell, Judge.
Suit by Maysie W. Curry and others against the Commissioners of Roads and Revenues of Decatur County. A temporary injunction was granted, and defendants bring error. Affirmed.
Maysie W. Curry, Alice Curry, and Mrs. Norman Blaum filed their petition for injunction against the commissioners of roads and revenues of Decatur county, alleging that they are owners of land lots 267 and 268 in the Fifteenth district of said county; that the commissioners have served upon them a notice of their intention to condemn a right of way for a public road between said lots, said road to be 40 feet wide and to be on the land line between said lots; that the commissioners intend to enter upon said lands and to build a road which they claim to be a public road on the land line between said lots, extending across the same, and embracing a strip 20 feet wide on each side of said land lot line, and extending from the west side of said lots to the Bainbridge and Newton road; that the intention of the commissioners to condemn said land for said public road is illegal: (a) Because said road is not a public road within the meaning of the law, the same not having been established or laid out as is provided by sections 640-645 of the Civil Code, and that said road as far as it has been constructed is void as a public road; (b) that the description of said road is so vague and indefinite that it cannot properly be laid out, the description being "from at or near the former residence of W. E Griffin," without showing what former residence, or when the residence of W. E. Griffin was at any point; (c) that the proceedings to condemn are illegal and void, for the reason that the notice of condemnation was not given by the commissioners, the same being signed only by W. G. Harrell chairman, and R. G. Hartsfield, clerk; and (d) that no valid effort has been made to purchase said lands from them or the right of way over the same.
The plaintiffs alleged that to permit the condemnation and entering upon their lands would produce irreparable injury and damage to them, and that they had no adequate remedy at law to prevent the illegal action of the defendants. They prayed that the commissioners be enjoined from proceeding with the said condemnation. The petition was verified by the affidavit of Maysie W. Curry. Attached to the petition was a copy of the notice of the "intention of the commissioners of roads and revenues of Decatur county to condemn for a public road," after paying to plaintiffs all damages that might be fixed by assessors named, a strip across their land, 40 feet wide and extending an equal distance on both sides of the land line, between the above lots, "for the purpose of a right of way for a public road leading from at or near the residence of W. E. Griffin due east" along the land line between said lots to the Bainbridge and Newton road at Red Bluff. This notice further stated that a hearing for the purpose of condemning said land would be had by the assessors on the premises on November 4 1921, and that J. E. Steadam was thereby appointed as assessor to act in behalf of the commissioners. The plaintiffs were requested in said notice to appoint an assessor to act in their behalf, and were notified that on their failure to do so the ordinary would be requested to appoint an assessor for them, as provided by law. This notice was dated October 3, 1921, and was signed by "W. G Harrell, Chairman," and by "R. G. Hartsfield, Clerk."
The commissioners answered, and admitted that they were proceeding to condemn the land of the plaintiffs. They denied that the establishment of the public road was illegal, that the condemnation of the plaintiffs' lands would produce irreparable injury and damage, and that the plaintiffs were without adequate remedy at law. The commissioners further alleged that a petition was submitted to them, signed by various citizens, for the establishment of said public road through the lands of the plaintiffs, whereupon they appointed W. W. Harrell, V. C. Long, and W. H. Yeates to view said road, and, if they found the same to be a public utility, to lay it out and mark it and to report their findings under oath. Said reviewers made their sworn report, and the commissioners considered the same, and ordered said road to be advertised as required by law. After being advertised, and no objection to its final establishment as a public road other than that of the petitioners in this case having been made, the commissioners did pass an order establishing said public road at their regular September term, 1919. The road so established had been traveled by the public from its western end up to the land line of the plaintiffs; and the road is one of public utility and necessity. The commissioners further alleged that T. S. Hawes, who was acting as attorney for the plaintiffs in establishing the road, stated to T. E. Rich, a member of the board of commissioners, that his clients would neither sell nor give the right of way across their lots for this road, and that they would demand damages for the same, for which reason condemnation proceedings were ordered. A copy of the petition for the establishment of the road was attached as an exhibit to the answer. The petition was signed by various persons, among whom appears the signature, "Jas. R. Donalson, Agt." Attached to the answer was a copy of the order of the commissioners appointing the persons to view and report whether said road would be of public utility and convenience. Likewise attached to the answer was a report of the reviewers, in which they found that the public road was a public necessity and convenience. The answer was duly verified by T. E. Rich.
On the hearing the plaintiffs testified by affidavits that they were the owners of lots 267 and 268 in the Fifteenth district of Decatur county; that the county commissioners served them with the notice of condemnation proceedings; that the same was not signed in any other manner than is shown by the signatures of the chairman and clerk of the commissioners that no valid effort had been made to purchase the lands from them, no offer having been made to them for said lands; that they had no notice of any application from the ordinary for the establishment of said road, or the appointment of the three road commissioners, of their findings, or of any report of said commissioners to the ordinary; that they had seen no citation...
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