Mills v. Ga. Ry. & Electric Co

• Decision Date: 24 July 1908
• Citation: 131 Ga. 129,62 S.E. 52
• Parties: PIEDMONT COTTON MILLS. v. GEORGIA RY. & ELECTRIC CO.
• Court: Georgia Supreme Court

62 S.E. 52

(131 Ga. 129)

PIEDMONT COTTON MILLS.

v.GEORGIA RY. & ELECTRIC CO.

Supreme Court of Georgia.

July 24, 1908.

1. Eminent Domain — Injunction — Street Railroads — Location of Route — Estoppel.

Under the facts of this case, the plaintiff was not estopped from seeking to enjoin the defendant as prayed in its petition.

2. Same—Evidence— Admissibility.

Where a railroad company has the right to condemn private property for public uses in the construction and operation of its road, it has a large discretion in the selection of a location for its route over such property, and, unless such discretion has been abused, it will not be controlled or interfered with by the courts.

(a) Upon the trial of a case wherein the owner of the property through which it is proposed to run such road complains that such discretion of the company has been abused by it, it is error to exclude testimony relevant and material upon the issue as to whether or not the company has acted in bad faith in the selection of such location.

(b) Where the route selected and sought to be condemned by such company for the location of its road ran near the cotton mill of the owner of the land, who introduced testimony to show that another route over such land was equally as practicable, feasible, and advantageous to the company and the public as the one selected, and that it contemplated in a short time making an enlargement of its mill, the plant of which was originally designed and constructed with the intention of subsequently making such enlargement, and which would have been designed and constructed at less cost if such intention had not existed, it was error to exclude testimony, offered for the purpose of showing that such company acted in bad faith in selecting the route it did select, to the effect that the portion of the land over which such route was selected was the only location on such land on which its mill could be scientifically and economically enlarged, and that to enlarge their plant at any other location on said land would necessitate the building of a new and independent mill which could not be operated in connection with the existing plant.

3. Same—Amount of Property that May Be Taken—Injunction—Grounds of Relief—Inadequacy of Remedy at Law.

A party having the right of condemning private property for public purposes can only condemn such amount thereof as is useful, needful, and necessary for public purposes.

(a) If such party, in condemnation proceedings, makes an effort to condemn more land than is necessary for public purposes, as the assessors in such proceedings can only determine the amount of compensation to be paid, the owner of such land has the right to have a court of equity intervene and enjoin the condemnation of such of his land as is not necessary for public purposes.

(b) Where a party has a right to condemn land for public purposes, it is not confined to such quantity as may be absolutely necessary or indispensable for public purposes; but suchquantity as may be reasonably necessary may be condemned.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 153.]

4. Same—Injunction — Street Railroads — Location of Route—Evidence— Admissibility.

Upon the trial of a case wherein the owner of land seeks to have a party having the right of condemnation enjoined from condemning his land, it is not error to admit testimony of such condemnor that he made an effort before instituting such condemnation proceeding to acquire by contract the property sought to be condemned and failed in such effort.

5. Same—Power to Take—Street and Suburban Railways.

Suburban and street railroad companies incorporated under the general law pursuant to Civ. Code 1895, § 2180, have power to condemn private property outside of the limits of incorporated towns and cities.

Holden, J., dissenting in part.

(Syllabus by the Court.)

6. Words and Phrases—"Street Cars."

"Street cars, " accurately speaking, are cars which traverse the streets of a town or city and carry passengers who get off and on at various points along the line. They have been considered as vehicles of street travel.

[Ed. Note.—For other definitions, see Words and Phrases, vol. 8, p. 7800.1

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Equitable petition by the Piedmont Cotton Mills to enjoin the Georgia Railway & Electric Company from condemning a right of way through a particular part of plaintiff's property, and from an order refusing an interlocutory injunction, plaintiff brings error. Reversed.

Dorsey, Brewster, Howell & Heyman, H. L. Culberson, and Owens Johnson, for plaintiff in error.

Walter T. Colquitt and Rosser & Brandon, for defendant in error.

HOLDEN, J. The Georgia Railway & Electric Company, the main defendant in this case, was incorporated as a street and suburban railroad. After obtaining its original charter, it sought and obtained from the Secretary of State an amendment thereto, purporting to give it the right to run a branch line from East Point to Hapeville through the property of the plaintiff and others. It attempted to condemn the property of the plaintiff, which filed an equitable petition to enjoin the defendants from condemning, and the defendant Georgia Railway & Electric Company from taking, a right of way through the property of the plaintiff. To the order of the court refusing an interlocutory injunction, the plaintiff filed exceptions.

1. The evidence shows that the defendant undertook to buy from the plaintiff a right of way through its property, and negotiations were had between them to this end. After these negotiations were at an end, the defendant sought to have assessors appointed and a right of way condemned. One assessor was appointed by the plaintiff and one by the defendant, and, upon the failure of these as sessors to agree upon a third one, the court appointed the third assessor. These assessors met and adjourned to a subsequent day fixed by them, on which date plaintiff filed its application for an injunction and obtained a temporary restraining order. There was evidence that the defendant had built its line of railway from Hapeville, on one side, and East Point, on the other, almost, if not quite, up to the plaintiff's property. The evidence of the general manager of the plaintiff, who had charge of the matter for the plaintiff, was that he always proceeded in the matter on the information that the plaintiff could not do anything whatever in staying any purpose of the defendant, and that it had a right to run its right of way through the mill if it so desired, and that it was only recently and just before the petition for injunction was filed that he learned that the plaintiff had any redress. It does not appear from the evidence in this case how much work was done by the defendant on its line from Hapeville and East Point towards the property of the plaintiff after the plaintiff had knowledge of the fact that the defendant contemplated running its right of way through the property of the plaintiff; but, even if it disclosed how much work was thus done, it does not appear from the record in this case that the defendant did any work on the faith of anything done or said by the plaintiff's officers, or that the defendant was misled thereby. There being no evidence of intentional deception on the part of the plaintiff, or any conduct which actually misled the defendant, the plaintiff would not be estopped from asserting any of its legal rights in the injunction proceedings. Civ. Code 1895, § 5152; Tinsley v. Rice, 105 Ga. 285, 290, 31 S. E. 174; Evans v. Napier, 111 Ga. 105, 36 S. E. 426; Starr v. Newman, 107 Ga. 395, 33 S. E. 427; Thornton v. McDonald, 108 Ga. 3, 33 S. E. 680; American Freehold Co. v. Walker, 119 Ga. 341, 46 S. E. 426.

2. The plaintiff alleged that it originally erected a cotton mill of a stated capacity, which it had since increased, and that it had purchased more land for the purpose of making still further additions to and enlargements of its plant, and contemplated in a short time making such enlargements and additions. The plaintiff further alleged that the place where the defendant seeks to locate its right of way is the only place where such enlargements and additions can be made to the original plant so as to be operated under the same heads of departments, and so that the same steam plant used in connection with the original mill could be used in operating the machinery added, and that the power house of the original mill was originally built with a view to housing such a steam plant as would operate such additions as might be made. It contended that if the additions and enlargements of the original mill were not made at this place, but at some other placeon its property, it would be the same as if it were to erect a new and independent mill, and, owing to various reasons set forth, it would derive no benefit from it as an enlargement and extension of the original mill. The plaintiff further alleged that the physical formation of its land was such that the defendant could locate a right of way at a different place, which, as far as concerns the defendant and the public it serves, was just as feasible, practicable, and advantageous a route as the one it sought, and that this route would be the same to the defendant and the public in every respect, except that it would be about 30 feet longer, and would have a slight curve therein. The plaintiff contended that the defendant's location of its right of way at this particular place that was needed by the plaintiff for the enlargement of its mill was done arbitrarily, capriciously, and without reason or justice. The defendant denied all of these contentions of the plaintiff, and offered proof to show that the route selected by it was the only practicable, feasible, and advantageous route, and that any other route over the plaintiff's property, by reason of the curves such other route would necessitate, would make it dangerous to...