Jones v. North Ga. Electric Co

Decision Date16 May 1906
PartiesJONES. v. NORTH GEORGIA ELECTRIC CO.
CourtGeorgia Supreme Court

Eminent Domain—Public Purposes—Water Powers—Due Process of Law.

The statute of this state (Acts 1897, p. 68; Van Epps' Code Supp. §§ 6454-6456) which confers upon owners of water powers under certain conditions the authority to exercise the right of eminent domain is not violative of that clause in the Constitution which prohibits the taking of property without due process of law.

(Syllabus by the Court.)

Error from Superior Court, Gwinnett County; C. H. Brand, Judge.

Action by H. V. Jones against the North Georgia Electric Company. Judgment for defendant, and plaintiff brings error. Affirmed.

The petition alleges that the plaintiff is the owner of a certain tract of land, and that the defendant is a corporation chartered and organized under the laws of this state for the purpose of carrying on the business of generating electricity by water power, to be used for the purpose of lighting towns and cities and supplying motive power to railroads and street car lines, and supplying light, heat, and power to the public, with the apparent right to exercise the power of eminent domain for said objects; that said defendant, in execution of its purpose, has applied to the plaintiff for a right of way for its poles, towers, and wires across his said land, but that the plaintiff and defendant are unable to agree as to the amount of damages to be paid by the defendant, and the defendant is undertaking, by virtue of what It claims as its rights under an act of the General Assembly of the state of Georgia approved December 7, 1897 (Acts 1897, p. 68), to condemn a right of way across the said land, and to construct its towers thereon, and is proceeding under the provisions of Code 1895, §§ 4657-4686, to condemn to its own use the aforesaid easements in the property of the plaintiff, and has served upon the plaintiff its petition and notice, and has appointed its appraiser in accordance with said provisions of the Code. The plaintiff further alleges that all of the proceeding upon the part of the defendant is unlawful, inasmuch as the said act of the General Assembly is unconstitutional and void, and in violation of article 1, § 1, par. 3, of the Constitution of the state of Georgia, and also in violation of that part of the fourteenth amendment of the Constitution of the United States which guaranties that no person shall be deprivedof life, liberty, or property, except by due process of law, because the powers given in said act are not for such public uses as are contemplated by the Constitution, giving the right to take private property for public uses, and because it is not the purpose or intent of the Constitution to authorize corporations chartered by the superior court to exercise the right of eminent domain. The plaintiff contends that all powers of condemnation which the Legislature has attempted to confer in excess of those mentioned in article 1, § 3, par. 1, of the Constitution, are unconstitutional and void. He further alleges that he has refused to appoint an assessor, and has refused to do anything to subject himself to the jurisdiction of the arbitrators, but that, unless the defendant is restrained by the court, the defendant will proceed under said statute to have assessors appointed for and in behalf of the plaintiff, and will take said easements on plaintiff's land unlawfully and contrary to plaintiff's rights, etc. The prayer is for an injunction.

In its answer the defendant, admitting its organization as a corporation and the purpose for which it was organized, as alleged in the plaintiff's petition, declares that it has not only the apparent, but the actual, right to exercise the power of eminent domain. It denies that the act of the General Assembly approved December 7, 1897, is violative of either the Constitution of the state of Georgia or the Constitution of the United States. It admits that the plaintiff refused to appoint an assessor, but denies that the defendant is proceeding or would proceed to condemn the plaintiff's land unlawfully or contrary to the plaintiff's rights. It says that the Legislature passed said act in the exercise of its discretion, pursuant to article 3, § 7, par. 22, of the Constitution, which in express terms gives the General Assembly power to make all laws and ordinances consistent with the Constitution of Georgia, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the state. The defendant further says that said right of way was obtained in accordance with and in view of the said act of the Legislature of 1897, and that after obtaining its charter the defendant purchased and developed a large water power in Hall county, upon and across the Chattahoochee river, and has completed the same, with the necessary electric appliances, and is therefore in readiness for use in serving the public, and is now serving the public by furnishing the municipality of Gainesville with electric lights for the purpose of lighting said city, and with electric power to the pumping station of said city for the purpose of supplying said municipality with water for the general use of the citizens, and in addition thereto is serving all the citizens of Gainesville desiring the same with electric light and power at a fixed, uniform, and reasonable rate. The defend ant further says that it owns a number of other water powers which it is now preparing to develop, so as to develop the resources of the state and bring the immense and valuable water powers of the upper part of the state of Georgia into available use; that the water power already developed by it furnishes much more power, energy, and electricity than can be consumed in and about the city of Gainesville, and the defendant has obtained from the mayor and council of the city of Atlanta the right, power, and privilege for the full term of 30 years to occupy every street, alley, and public place throughout the city of Atlanta for the purpose of placing thereon conduits, wires, conductors, cables, insulators, manholes, service boxes, and all necessary appliances for the purpose of conducting, supplying, and distributing power, energy, and electricity for light, heat, and power to said municipality of Atlanta and to the public generally of said city and of Pulton county; that it has contracted with the said city, in consideration of the said franchises, to furnish the said municipality throughout the entire 30 years with arc lights and incandescent lights at a fixed price, should the same be desired by the said municipality; that it has also contracted with said municipality, and by the terms of the franchises thus granted stipulates, undertakes, and contracts to furnish electric current for the purpose of light and heat to individuals, firms, or corporations within the city for a stated price, and to furnish electric current, for the purpose of power, to individuals, firms, or corporations within the city at a stated price, and that said defendant is bound by law, and by the terms of its charter and the acceptance of said franchises, to serve both the municipality and all the public applying for said power, light, and heat at such stipulated prices; that said prices are reasonable and at less rates than the charges now made for the same service in said city. The defendant further alleges that, in order to conduct its said electric energy from its power plant, it is necessary to transmit the same by means of high tension wires placed upon towers 40 to 45 feet in height, so as to have the same far above reach of injury from said transmission of power, and to this end the defendant has purchased a right of way for almost the entire distance from said power plant, in Hall county, to the city limits of Atlanta, in Fulton county, and is now erecting its said towers in a safe and permanent form, properly insulated, so as to place thereon said wires, so as to transmit said electric energy for the uses above-mentioned. The defendant further alleges that the plaintiff has a narrow strip of land a few hundred feet in width, and that it is absolutely necessary to cross said strip with the wires of said defendant company, as it lies directly in the route of said tower line, and that it will be necessary to place upon said land two or three towers, and place up-on said towers said electric wires. Said towers are eight feet square at the base and substantially erected, and will in no way interfere with the property of the plaintiff or injure the same, except the space of eight feet square thus occupied by the towers, and the defendant is willing and ready to pay a fair and reasonable price, and has offered to do so, but, being unable to agree with the plaintiff as to the amount of compensation to pay him, has found It necessary to resort to condemnation proceedings, as alleged in plaintiff's petition. Defendant further alleges that there is, throughout the state of Georgia, immense natural water power, and that under the improved system of the generation of electricity no state throughout the Union has greater interest than Georgia in the improvement of said natural advantages by the application of water power to manufacturing purposes, and for the purpose of supplying light and heat to the cities of Georgia and to the public generally; that nature has denied to this state any large supplies of coal for the purposes of fuel and of generation of power and light, and her citizens have to depend almost entirely on the shipments from other states; that the forests of this state are rapidly disappearing, and there is now left for the future generations only its immense water power to compensate for lack of coal and disappearing forests; that improved inventions now permit the transmission of power by means of wires for hundreds of miles at a very small and inappreciable loss in said...

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