Francis Jones & Co. v. Venable

• Decision Date: 11 May 1904
• Citation: 47 S.E. 549,120 Ga. 1
• Parties: FRANCIS JONES & CO. v. VENABLE et al.
• Court: Georgia Supreme Court

47 S.E. 549

120 Ga. 1

FRANCIS JONES & CO. v. VENABLE et al.

Supreme Court of Georgia

May 11, 1904

Syllabus by the Court.

1. A person or corporation actually engaged in the business of quarrying granite or other stone, who, for the successful prosecution of such business, needs a right of way for a private railroad across the lands of others, is, under the Constitution and laws of this state, in a case of necessity authorized to obtain the same under condemnation proceedings.

Error from Superior Court, De Kalb County; L. S. Roan, Judge.

Action by W. H. and S. H. Venable to enjoin Francis Jones & Co., a partnership, from proceedings to condemn certain property. Judgment for plaintiffs, and defendants bring error. Reversed.

Rucker & Rucker, for plaintiffs in error.

J. D Kilpatrick and J. W. Moore, for defendants in error.

FISH P.J.

Francis Jones & Co., a partnership, had served upon W. H. and S. H Venable, of De Kalb county, a notice under Civ. Code 1895, § 4657 et seq., in which notice they stated that they had leased Rock Chapel Mountain, in that county, from its owners, for the term of five years, and were engaged in quarrying granite from said property, and desired to condemn for the period of five years, under the provisions of the Code, a right of way 15 feet in width for a railroad across a described strip of land owned by the Venables; the railroad to run from Rock Chapel Mountain, where the quarry was located, to a point on the Georgia Railroad at or near Lithonia, Ga. The notice designated the point at which and the manner in which the proposed railroad would cross the strip of land in question, named the person selected by the applicants to assess the damages for the right of way, and requested the Venables to select an assessor for such purpose. The Venables then brought a petition to enjoin the applicants from proceeding further in their efforts to condemn the property for the purpose described in the notice, and from entering upon or otherwise interfering with the property of the petitioners. The petition for injunction alleged that the condemnation sought to be made was contrary to law, for the following reasons: "(1) The enterprise of quarrying granite and marketing the same is purely private, and is one in which the public has no interest. (2) The road sought to be built is not a private way within the meaning of the Constitution of this state. (3) It is not within the power of the General Assembly to enact a valid statute authorizing the condemnation of private property to the use of another for purely private purposes. Such an act would be null and void, would deny the owner the equal protection of the law, and would deprive him of his property without due process of law. (4) The General Assembly of Georgia has made no provisions for compensating the owner for the land condemned." The petition further alleged that the defendants threatened to enter, with their assessor, upon the land of the petitioners upon a given date, and, if no assessor should be appointed by the petitioners, to then apply to the ordinary of the county to appoint an assessor to act for the Venables, and to build the railroad in question over the land of the petitioners against their will. Upon this petition a temporary restraining order was granted, and at the interlocutory hearing the court granted the injunction prayed for, to which judgment the defendants excepted.

The question involved in the case is whether a person or corporation actually engaged in the business of quarrying granite or other stone, who needs, for the successful prosecution of such business, a right of way for a private railroad across the lands of others, may, in a case of necessity, acquire such right of way under condemnation proceedings. The Political Code, § 650, provides that a person or corporation actually engaged in such business, who may need, for the successful prosecution of the same, such a right of way, may obtain it "in the same manner that the right to convey water across the lands of others may be acquired by the owners of mines, as provided in the Code"; and that manner, as we shall see later, is by condemnation. The court below held that if, in the statute embodied in this section of the Political Code, "it was the intention of the General Assembly to grant to private persons the right to condemn the land of another for the purpose of building a private railroad for the hauling of granite from a private quarry," the act was unconstitutional, and so granted the injunction prayed for. After a careful consideration of the matter, we have reached the conclusion that our learned brother of the trial bench erred in this ruling. We grant the contention of the defendants in error that "the enterprise of quarrying stone and marketing the same is purely private, and one in which the public has no interest." This being granted the statute in question, as applied to this case, cannot be held to be constitutional upon the idea that property condemned under its provisions will be condemned for a public use. Can property, under the Political Code, § 650 et seq., be condemned for a private use? The Constitution of this state provides: "In cases of necessity, private ways may be granted upon just compensation being first paid by the applicant." Civ. Code 1895, § 5729. If, then, the rights of way provided for in these sections of the Political Code are private ways, the power of the Legislature to authorize their establishment under condemnation proceedings in cases of necessity cannot be questioned. The Constitution does not undertake to define private ways, or to limit the purposes for which they may be granted. The only limitation upon the power of the Legislature to provide for the granting of private ways is that they can only be granted in cases of necessity. The defendants in error, however, contend that the rights of way provided for in the Political Code, § 650, are not private ways. Their position seems to be this: that the rights of way dealt with in this section are neither public nor private ways. It is necessary for them to take and maintain this position in order to sustain their contention; for, if the ways provided for are either public or private ways, then the power of the Legislature to provide for their establishment, in cases of necessity, under condemnation proceedings, is clear under the Constitution. If they are neither public nor private ways, what sort of ways are they? Ways they are, and they must be the one or the other; for, according to our understanding, all ways are either public or private. 1 Cooley's Blackstone (4th Ed.) 458, note 2; 12 Enc. Laws of Eng. 571; 29 Am. & Eng. Enc. L. 30. There are different kinds of public ways and different kinds of private ways, but all ways are included in the one or the other general classification, though some may partake of the nature of both, being maintained and operated for private gain and for use by the public. The common-law writers divided private ways into several classes, according to the purpose or purposes for which the right of way could be used. Thus Lord Coke, adopting the civil law, divided them into three kinds: A footway, called ""iter"; a footway and horseway, called "actus"; and a cartway, which embraced the other two, called "via"; to which was added a driftway--a road over which cattle could be driven. Dyson v. Ballard, 1 Taunt. 279. Woolrych, in his work on the subject, also makes these four classes of ways: Footways; footways and horseways; foot, horse, and carriage ways; and driftways. Woolrych, Ways, 1. But these old classifications of private ways are not exhaustive of the subject, for, as a private way for any particular purpose could always be created by a grant, and in theory always rested upon a grant, actual or implied, it is evident that when one person granted to another a right of way extending from the land of the grantee over the land of the grantor, for the private use of the grantee, in any manner, and...