Hightower v. Chattahoochee Indus. R.R., 21686
| Decision Date | 09 July 1962 |
| Docket Number | No. 21686,21686 |
| Citation | 126 S.E.2d 664,218 Ga. 122 |
| Parties | Hilton E. HIGHTOWER v. CHATTAHOOCHEE INDUSTRIAL RAILROAD. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The evidence authorized the trial judge's denial of the interlocutory injunction sought against the condemnation complained of.
Phillip Sheffield, Blakely, for plaintiff in error.
W. L. Stone, Stone, Blakely, Hansell, Post, Gardner, Brandon & Dorsey, R. W. Crenshaw, Atlanta, for defendant in error.
A property owner assigned error upon the trial judge's denial of an interlocutory injunction against condemnation of a portion of his land by a railroad.
Hilton E. Hightower sought injunctive relief against Chattachoochee Industrial Railroad, which had recently been granted its charter by the Secretary of State and was seeking a right of way for the original lay out and construction of its lines. Upon the interlocutory hearing, evidence was submitted on behalf of each of these parties.
In their oral arguments and briefs submitted here, counsel have narrowed and difined the issues so that we may state them as follows: 1. Was prior approval by the Public Service Commission necessary for this condemnation? 2. Was the condemnation a taking for a private, rather than a public, purpose? As to the first issue, admittedly no such approval was obtained, the parties differing as to its necessity. As to the second, they disagree as to the legal effect of the testimony adduced. We now consider those two issues in determining the correctness of the denial of the interlocutory injunction.
1. The plaintiff property owner's position is that the absence of such prior approval of the condemnation demanded the grant of the interlocutory injunction, and for this reason alone its denial was error. We cannot agree with this contention.
Authority for this original condemnation is provided by Code § 94-301(3), (4), which empowers such a railroad 'to condemn' and '* * * to lay out its road. * * *'
The approval of the Public Service Commission is said to be necessary because of Code § 94-321, which contains the following language: '* * * Provided, further, that the right of condemnation under this section shall not be exercised until the Public Service Commission, under such rules of procedure as it may provide, shall first approve the taking of the property or right-of-way designated for the public use or uses desired.' But this Code provision does not apply here. It is applicable to railroads which have previously laid out and constructed their rights of way and wish to improve their lines or relocate their tracks. This is manifest from the caption of the original act (Ga.L.1914, p. 144) supplying the significant portion of this section. That caption states: 'An Act to authorize and empower railroad companies owning or operating, or which may hereafter own or operate a railroad or any part thereof in the State of Georgia to better and improve their lines of railroad by the relocation of their track or tracks, the construction of additional tracks and terminal facilities, the elimination of curves and grades, the filling of trestles or the widening of cuts, the...
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