Marist Soc. of Ga. v. City of Atlanta
| Decision Date | 29 November 1955 |
| Docket Number | No. 19048,19048 |
| Citation | 212 Ga. 115,90 S.E.2d 564 |
| Parties | MARIST SOCIETY OF GEORGIA et al. v. CITY OF ATLANTA et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
No reversible error is shown to have been committed by the trial judge in any ruling complained of.
The City of Atlanta filed a petition in rem to condemn described lands. The petition alleges that it is brought pursuant to Chapter 36-11 of the Code, as amended by the Act approved January 13, 1938, Ga.L.1937-38, Ex.Sess. pp. 251-253, Code Ann.Supp. §§ 36-1104, 36-1115. The petition as amended alleges that the lands sought to be condemned are to be used for the construction of the North-South Expressway from Spring Street to Baker Street. A resolution of the mayor and council, dated January 3, 1955, provides that 'the amended plan as submitted by the State Highway Department for said Right-of-Way, as shown on the plat hereto attached, be approved.'
The defendants' general demurrer to the petition, as amended, was overruled. The plaintiff's demurrers to the defendants' response and cross-action, asserting that the plaintiff does not have authority to condemn lands for a State-aid highway, were sustained. The prayers of the defendants for an interlocutory injunction were denied.
The defendants except, assigning error on certain rulings of the trial court adverse to them. The parties will be referred to as the city and as the defendants. The assignments of error will be considered in the sequence set out in the brief of counsel for the defendants.
Merrell Collier, Henry L. deGive, Allen Post, Atlanta, for plaintiffs in error.
B. D. Murphy, J. Winston Huff, Powell, Goldstein, Frazer & Murphy, Newell Edenfield, J. C. Savage, J. C. Murphy, Henry L Bowden, Martin McFarland, J. M. B. Bloodworth, Atlanta, for defendants in error.
1. The contention that the City of Atlanta has not been granted legislative authority to condemn property for a State highway is based upon statutes enacted, and decisions of this court, prior to the act approved March 7, 1955, Ga.L.1955, pp. 559-564. Section 3 of the act of 1955 provides that any municipality in this State, in co-operation with any Federal, State, or local agency, is authorized to plan, designate, and establish, limited access highways. Under § 5 of the 1955 act, municipalities are authorized to acquire private or public property for such highways by purchase or condemnation 'in the same manner as such governmental units are now or may hereafter be authorized by law to acquire such property'.
The charter of the City of Atlanta approved February 28, 1874, and particularly § 60 thereof, Ga.L.1874-75, pp. 116-150, as amended, has been construed by this court to authorize the city to condemn property for public streets. See Trustees of Atlanta University v. City of Atlanta, 93 Ga. 468, 21 S.E. 74; Georgia Railroad & Banking Co. v. Town of Decatur, 129 Ga. 502, 59 S.E. 217; Zachry v. Town of Harlem, 138 Ga. 195, 199, 75 S.E. 4.
The original brief filed by counsel for the defendants concedes that the charter of the city confers the power of eminent domain upon the city for public streets.
2. An amendment to the charter of the city, Ga.L.1886, pp. 239, 240, provides that the city may decline to accept property sought to be condemned should the award be deemed by the general council to be too high or unreasonable. It is insisted that the city is proceeding illegally because of this charter provision.
This provision is in accord with the general law of this State with reference to condemnation of property for public roads by the several counties of this State. Code, § 36-1004. The case of Thomas v. City of Cairo, 206 Ga. 336, 57 S.E.2d 192, 193, cited by the defendants, is not in point on its facts with the present case. In the Thomas case the City of Cairo, in the resolution authorizing the condemnation proceedings, undertook to limit and restrict the resolution providing for condemnation, in that the price to be paid was to be approved by the Council of the City of Cairo "before the same shall be finally binding on the City of Cairo." In the present case the resolution by the mayor and council authorizing the condemnation of the property described does not undertake to limit or restrict the condemnation, or limit it to final approval by the city. On the contrary, the resolution provides specifically that the amount of the final award shall be paid from a designated fund.
The brief of counsel for the defendants asserts that the right of way which the city is seeking to condemn is a part of a highway being constructed partly with Federal funds pursuant to a contract between the State Highway Department of Georgia and the Commissioner of Public Roads of the Federal Government. There is nothing in the pleadings or in the record in the present case to indicate any desire on the part of the mayor and council of the city to limit or abandon any part of the extensive limited access highways under construction within the territorial limits of the city; nor is there anything in the record to indicate that, should the city elect to abandon the project, it would not be completed by the State Highway Department pursuant to its contract with the Commissioner of Public Roads of the Federal Government.
Under the rule stated in Harrison v. State Highway Dept. of Ga., 183 Ga. 290, 188 S.E. 445, the condemnor cannot just abandon a condemnation proceeding. Affirmative action seeking to set aside the judgment in favor of the condemnor, and the payment of all expenses and damages accrued to the condemnee, are essential to the vacating and setting aside of a judgment for the value of property condemned.
In the absence of proof that the city is asserting a right to abandon the project, or that the condemnation proceedings were not in good faith, the condemnation of lands for highways will not be enjoined on the theory that the city is authorized by its charter to disapprove an award for the value of the land.
3. In State Highway Department v. H. G. Hastings Co., 187 Ga. 204, 208(4), 199 S.E. 793, 133 A.L.R. 1, it was said that the condemnor can, in one proceeding, condemn a right of way over several tracts of land owned by different persons. See...
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