Donalson v. Georgia Power & Light Co.

• Decision Date: 16 August 1932
• Docket Number: 8568.
• Parties: DONALSON v. GEORGIA POWER & LIGHT CO.
• Court: Georgia Supreme Court

165 S.E. 440

175 Ga. 462

DONALSON v. GEORGIA POWER & LIGHT CO.

No. 8568.

Supreme Court of Georgia

August 16, 1932

Syllabus by Editorial Staff.

Ownership of soil and right to easement are independent, grantee of easement not being owner or occupant of estate over which his right extends.

Owner of fee of highway, over which public has easement for travel may recover land within highway limits in ejectment against one illegally appropriating it to purpose not authorized by easement or servitude imposed thereby.

Owner of fee can use public highway in any manner not inconsistent with public right.

Statute directing that compensation be made owners of land laid out for right of way intends purchase of easement, not land (Civ Code 1910, § 5206 et seq.).

Property dedicated to particular purpose cannot by dedicatee, a municipality, be diverted therefrom except by eminent domain (Const. art. 1, § 3, par. 1).

Municipality's acceptance of dedication of street easement extends only to portion of street over which it exercises corporate authority.

Power company cannot erect poles in highway, unless it has acquired right to do so, either by consent of owner of soil or condemnation (Const. art. 1, § 3, par. 1).

Dedication of land for street purposes held not to authorize municipality to allow power company to erect transmission line on dedicated land (Const. art. 1, § 3, par. 1).

Error from Superior Court, Decatur County; B. C. Gardner, Judge.

Suit by E. M. Donalson, executor, against the Georgia Power & Light Company. Judgment for defendant, and plaintiff brings error.

Reversed.

GILBERT J., dissenting.

The executor of John E. Donalson sued to recover of the Georgia Power & Light Company a strip of land 6 feet wide and 1,110 feet long, on which that company had erected a line of poles with wires of a power line on which was transmitted electric current of 66,000 voltage. An abstract of title and a map were attached to the petition; and it was alleged that the strip in question is on the north side of Carter street as opened by the city of Bainbridge, and is bounded on the west by property owned by the defendant company and on the south by the center of Carter street. The defendant admitted possession, but denied that the plaintiff had any right, title, ownership, or interest in the land for which he sued. It set up that the strip of land on which its transmission line stands was dedicated by the plaintiff to the city of Bainbridge and to the public use as a street, and was accepted by the city; that after the dedication was complete the city granted to it authority to erect its poles on said strip and to string its wires thereon; that it is a public utility corporation, and as such by its charter is authorized and empowered to generate, purchase, or otherwise acquire, and to use, sell, or otherwise dispose of electricity, gas, light, heat, and power in any manner and for any purpose whatever; that it owns and operates a system of electric transmission lines by which its various properties in the southern part of Georgia are connected, and by means of which it serves various designated cities and communities; that it has an arrangement with the Florida Power Corporation by which it takes a large supply of electric current generated by that corporation on the Ochlocknee river, upon which it is almost entirely dependent for its operation in the western part of its territory, and to a large extent depends upon said source of supply for its operation in the remainder of its territory; that all of the current taken by the defendant from the hydroelectric plant of the Florida Power Corporation is transmitted from said plant over the line of wires extending from Bainbridge to the Florida line, a part of which is located on Carter street in Bainbridge; and should the plaintiff be permitted to recover the property sued for and eject defendant therefrom, it would be impossible, with its continuity of the line broken, for defendant to properly discharge its duties to the public.

It was agreed that the judge should decide the case, without a jury upon an agreed statement of facts, in brief as follows: In 1902 B. B. Bower and John E. Donalson owned each a half interest in designated land within the corporate limits of the city of Bainbridge. The land had been subdivided into blocks and streets, and among the streets delineated on the plat was Carter street, running east and west through the center of the lot. Partitioners allotted to Donalson a designated part of the land including the strip here in dispute. The return of the partitioners was made the judgment of the court on May 18, 1903, and was entered on the minutes. The land designated on the plat as Carter street was not opened for street purposes until the summer of 1926, and was not inclosed or otherwise occupied by the owners of land on either side, and there was a winding private road running in a general easterly and westerly direction, parts of which were on said strip and other parts of it. On August 3, 1926, before any part of said strip of land had been worked or improved, the city council of Bainbridge, by resolution, granted to a predecessor of the defendant company an easement "to construct high-tension lines on Carter Street, east from or near road to end of said street, or to city limits." A short time afterward, but before the presently existing transmission line was constructed near the edge of Carter street as laid out in the aforesaid subdivision, the city caused Carter street to be graded to a width of 50 feet, leaving a strip 8 feet wide on each side of the roadway and the outer boundaries of the street as originally laid out, not improved. The width of the street as originally laid out was 66 feet. In 1926, and shortly after the city caused 50 feet of the strip designated as Carter street to be improved in the manner aforesaid, the predecessor of the defendant company constructed the existing pole line on the 66-foot strip. The poles upon which the wires were strung were set 3 feet north of the graded part of said strip, and 5 feet from the north edge of the street as originally laid. The cross-arms attached to said poles are about 10 feet long, and do not extend beyond the north edge of the said 66-foot strip. Said transmission line is still in operation. The defendant is a public utility corporation, organized and existing under the laws of Georgia, and is engaged in the business of generating, distributing, selling, and furnishing electrical energy to the public for domestic and commercial uses. It has succeeded to such rights as were obtained easement to construct and maintain on Carter street the transmission line, and in possession of the strip of land sued for, and has held possession of it since September 18, 1927. Before the city of Bainbridge entered upon and graded a part of Carter street, the plaintiff, executor...