Folsom v. Gate City Terminal Co

• Decision Date: 13 April 1907
• Citation: 128 Ga. 175,57 S.E. 314
• Parties: FOLSOM v. GATE CITY TERMINAL CO.
• Court: Georgia Supreme Court

57 S.E. 314

128 Ga. 175

FOLSOM

v.GATE CITY TERMINAL CO.

Supreme Court of Georgia.

April 13, 1907.

1. Courts — Rules of Decision — Previous Decision as Controlling.

In most of its features this case is controlled by that of Bridwell v. Gate City Terminal Co., 127 Ga. 520, 56 S. E. 624.

2. Pleading — Allegations—Construction Against Pleader.

Where the petition of the plaintiff alleged that there was "a private alley" adjacent to his lot which it was sought to condemn, that his property consisted not only of the piece which the defendant was endeavoring to condemn, but also other property, "which receives benefit from said alley, * * * and that it has not undertaken to condemn the interest of your petitioner in said alley in said condemnation proceedings, " but there was no distinct allegation as to what the interest of the plaintiff in such alley was, or whether he had a title in fee to the alley or to any part of it, the allegations will be most strongly construed against the pleader, as indicating that his interest was an easement of way or like right appurtenant to this and other lots.

(Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 06.]

3. Eminent Domain — Compensation — Elements.

So construed, if the company proceeded to condemn the lot, it would "become vested with such interest in the property taken as may be necessary to enable the corporation" to exercise its franchise or conduct its business, with reversion to the person from whom it may be taken, should the property cease to be used for such purposes. A proceeding to condemn the lot, or a portion of it, would include compensation on account of an easement or similar appurtenance connected with the lot; and this would be taken into consideration in the assessment.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 221, 239, 346.]

4. Same—Nature of Power—Property Subject.

If it had been alleged and shown that the title to all or part of the alley was in the lot owner, and that the proposed right of way included within its limits both the alley adjacent to the lot and a portion of the lot itself, it would seem that the company could not leave uncondemned the alley, or that part of it to which the landowner had title, and condemn the strip from his lot adjacent to it; thus separating the remainder of the lot from the alley and leaving the latter within the rightof way. But the pleadings and evidence in the present case do not distinctly raise this point. 5. Same—Proceedings—Notice.

The contention that the notice of the proceeding to condemn was not authorized at the time when it was given, which was involved in the case of Bridwell v. Gate City Terminal Co., supra, is not involved in this case.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action between L. B. Folsom and the Gate City Terminal Company. From the judgment, Folsom brings error. Affirmed.

Smith, Berner, Smith & Hastings, for plaintiff in error.

Rosser & Brandon, for defendant in error.

LUMPKIN, J. Most of the questions raised in this case are decided in Bridwell v. Gate City Terminal Co., 127 Ga. 520, 56 S. E. 624. Section 4683 of the Civil Code of 1895 provides that, "upon the payment by the...