Elberton Southern Ry. Co. v. State Highway Dept.

• Decision Date: 13 September 1955
• Docket Number: No. 19007,19007
• Citation: 89 S.E.2d 645,211 Ga. 838
• Parties: ELBERTON SOUTHERN RAILWAY COMPANY v. STATE HIGHWAY DEPARTMENT of Georgia.
• Court: Georgia Supreme Court

Page 645

89 S.E.2d 645

211 Ga. 838

ELBERTON SOUTHERN RAILWAY COMPANY v. STATE HIGHWAY DEPARTMENT of Georgia.

No. 19007.

Supreme Court of Georgia.

Sept. 13, 1955.

Rehearing Denied Oct. 13, 1955.

Raymond F. Schuder, Wheeler, Robinson & Thurmond, Gainesville, for plaintiff in error.

Eugene Cook, Atty. Gen., Paul Miller, Andrew J. Tuten, Asst. Attys. Gen., Atlanta, Lamar N. Smith, Toccoa, for defendant in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

1. While the State Highway Department can exercise no power except that granted, Irwin v. Crawford, 210 Ga. 222, 78 S.E.2d 609; Georgia Power Co. v. Georgia Public Service Commission, 211 Ga. 223(2), 85 S.E.2d 14, by Code Ann. Supp. § 95-1504, it is provided that the Highway Department is 'To have charge and control of all road or highway work designated or provided for, or done by the State or upon the State-aid roads'. By Code, § 95-1705 it is empowered to designate or locate all State-aid roads, and by Code Ann.Supp. § 95-1728, to designate and take charge of any streets as a part of the State-aid system of roads within municipalities without the consent of the cities involved; to relocate any State-aid road, Code, § 95-1708, and is vested with full control and supervision of all State-aid roads. Code, § 95-1721. By Code Ann.Supp. § 95-1715 and Code, § 95-1724 it is vested with the right to condemn for road and allied purposes, and in the latter section is specifically authorized to act 'for and in behalf of the State' in the exercise of the right of eminent domain in the condemnation of rights of way and property thereon for the use of the system of State highways. Thus, a condemnation proceeding instituted by the 'State Highway Department of Georgia, acting for and in behalf of the State of Georgia, as plaintiff and condemnor, and, in the exercise of its power of eminent domain, brings this action for condemnation,' whereby it seeks to acquire a right of way for a State-aid road, is an action by the State. Tounsel v. State Highway Department of Georgia, 180 Ga. 112, 116, 178 S.E. 285; State Highway Department of Georgia v. Parker, 75 Ga.App. 237, 240, 42 S.E.2d 172.

2. While it is the rule that one exercising a delegated power of eminent domain may not condemn property already devoted to a public use unless power to do so be conferred in express terms, or by necessary implication, and in determining whether or not such power has been conferred the rule of strict construction will be applied, where such express power is conferred by the State upon one to whom it has delegated the right to exercise the power of eminent domain, property which is already devoted to a public use may be subjected to an additional or different public use by the one exercising such delegated authority. City Council of Augusta v. Georgia Railroad & Banking Co., 98 Ga. 161, 26 S.E. 499; Georgia Northern R. Co. v. City of Moultrie, 163 Ga. 513, 136 S.E. 415; Louisville & N. R. Co. v. Postal Tel.-Cable Co., 143 Ga. 331, 85 S.E. 110; Lee County v. Mayor, etc., of Town of Smithville, 154 Ga. 550, 115 S.E. 107; County of Floyd v. Rome St. R. Co., 77 Ga. 614, 3 S.E. 3. An examination of these authorities will disclose that, where the condemnor is one exercising a delegated power of eminent domain, the rule of strict construction is applied in determining whether there has been conferred upon the condemnor the express or implied authority to divert property already devoted to a public use to a new and different public use. If it has, the condemnor may proceed. If such power has not been so delegated by the sovereign, it may not. It follows, therefore, that the sovereign, admittedly able to delegate such power, necessarily possesses that power inherently, for only if the sovereign be inherently vested with this power in its own behalf, could it delegate that power to a subordinate corporation. The Constitution of this State, article 4, section 2, paragraph 1, Code Ann. § 2-2501, provides that 'The exercise of the right of eminent domain shall never be abridged, nor so construed as to prevent the General Assembly from taking property and franchises, and subjecting them to public use.' See Code, § 36-101 et seq.; Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449; City of Norton v. Lowden, 10 Cir., 84 F.2d 663.

3. Where, as here, the State, the sovereign itself, is acting by and through its duly constituted agency, the State Highway Department, it has paramount authority in the matter of taking any property within its boundaries for those public uses to which it may reasonably devote such property, including that which has already been devoted to a different public use. State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796. Hence the trial judge did not err in overruling the demurrer filed by the railway company to the petition brought by the State Highway Department to condemn a portion of the railroad right of way for public-road purposes, which demurrer attacked the petition upon the ground that the petition showed on its face that the property sought to be condemned is already dedicated by the defendant railway company to a public use, and that the petitioner is without power or authority to appropriate the property in question to another and different public use under the proceeding now before the court. Code, § 95-1724. See also, in this connection, Delaware & Hudson R. Corporation v. Public Service Commission, 234 App.Div. 129, 254 N.Y.S. 578, and numerous authorities there cited; United States v. City of Tiffin, C.C., 190 F. 279; United States v. Gettysburg Electric R. Co., 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 576; Western Union Tel. Co. v. Pennsylvania R. Co., C.C., 120 F. 362; Indianapolis & V. R. Co. v. Indianapolis & M. Rapid Transit Co., 33 Ind.App. 337, 67 N.E. 1013.

4. The railway company, by its special plea and by its plea and answer as amended, alleged that the land sought to be condemned by the Highway Department was already dedicated to public use; that the railway company at the place here involved owned a right of way extending one hundred feet from the center of its main line; that the Highway Department seeks to...