Norton Realty & Loan Co., Inc. v. Board of Ed. of Hall County

• Decision Date: 18 September 1973
• Docket Number: No. 48161,No. 2,48161,2
• Parties: NORTON REALTY & LOAN COMPANY, INC., et al. v. BOARD OF EDUCATION OF HALL COUNTY
• Court: Georgia Court of Appeals

Page 461

200 S.E.2d 461

129 Ga.App. 668

NORTON REALTY & LOAN COMPANY, INC., et al. v. BOARD OF EDUCATION OF HALL COUNTY.

No. 48161.

Court of Appeals of Georgia, Division No. 2.

Sept. 18, 1973.

Hammond Johnson, Jr., Gainesville, for appellants.

Robinson, Buice, Harben & Strickland, Sam S. Harben, Jr., Gainesville, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

Exercising the right of eminent domain granted county boards of education under Code Ann. § 32-951, the Board of Education of Hall County instituted an in rem proceeding for condemnation of certain lands of appellants to acquire a right-of-way and permanent easement for construction and maintenance of a sewer line. This was for extension of an existing City of Gainesville sewer line and was described as being for the purpose of providing sewage facilities to River Bend Elementary School. After the Special Master (Code Ann.Ch. 36-6A) determined the value of the land taken to be $5600 but subtracting $3,300 as representing consequential benefits and without any consequential damages, the award was entered at $2,300. Upon trial of the appeal, the jury returned a verdict for $925.

Condemnees then made a motion for a judgment notwithstanding the verdict and in the alternative for a new trial. In passing on this motion the court noted that the evidence introduced did not conform with the description of the easement contained in the petition. Accordingly, the order stated that there would be a new trial 'unless condemnor agreed that the judgment passed on the verdict entered by the jury dated July 12, 1972, be amended to conform with the evidence adduced at the trial.' (R. 65-67). This order further recited the condemnor had assented to such conformance and therefore the trial court amended its previous judgment rendered after the verdict by making a specific reference to 'The plat introduced as Condemnor exhibit 2 at the trial' and made the description contained in that plat to be a part of the final judgment.

This appeal followed. As stated in appellants' brief there are four questions for determination. These are: 1. Does the condemnor have authority to condemn a sewer easement which will serve others in addition to the River Bend School? 2. Does the condemnor's authority to condemn extend outside its territorial limits? 3. Does the trial court have the power to amend its original judgment to make the description conform to the evidence? 4. Does the amended judgment sufficiently describe the property taken?

1. The first question requires us to decide if the eminent domain power possessed by the Hall County Board of Public Education to condemn for school purposes extends to the instant situation where the sewage line extension will also be available to owners of lands lying between the existing facilities owned by the City of Gainesville and the River Bend School.

'The exercise of the right of eminent domain shall never be abridged, nor so construed as to prevent the General Assembly from taking property and franchises, and subjecting them to public use.' Code Ann. § 2-2501 (Art. IV, Sec. II, Par. I of the Constitution of Georgia).

'A condemnation proceeding is statutory and in derogation of the common law, and one who institutes such a proceeding has no authority to vary or add to the provisions of the statute. He has no right save those expressly granted by the statute.' State Highway Dept. v. Pierce, 46 Ga.App. 52(1), 166 S.E. 453. Under Code Ann. § 32-951: 'The county boards of education, . . . are hereby authorized and impowered to take and damage, by condemnation, private property for public school purposes, either for public school building sites, playgrounds, athletic fields, or other purposes, in connection with the common schools, high schools or any public educational program which is now or may be hereafter authorized by law.'

Our Supreme Court passed upon the discretion that exists in a condemning authority in Kellett v. Fulton County, 215 Ga. 551, 111 S.E.2d 364. There at page 555, 111 S.E.2d page 366 the court says: 'In King v. City of McCaysville, 198 Ga. 829(2), 33 S.E.2d 99, this court held: 'In the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken.' 'A large discretion is vested in a party having the right to condemn, in the selection of the particular property to be condemned; and such selection shall not be interfered with or controlled by the courts, unless made in bad faith, or capriciously or wantonly injurious, or in some respect beyond the privilege conferred by statute or its charter.' Piedmont Cotton Mills v. Ga. Ry. &c. Co., 131 Ga. 129, 134, 62 S.E. 52. In the Piedmont case, on p. 136, the court stated: 'The word 'necessary' is not meant to be used in the sense of 'indispensable.' Necessity for public use is not such an imperative necessity that would render the construction (and operation) of a railroad impossible without the amount of land in question'.' In an earlier case that court said, 'The law is well settled that, when the State gives to a person or corporation the right of eminent domain, it carries with the grant of this power the right to condemn such property as may be reasonably necessary for the purpose for which the property is to be condemned, . . .' Barrett v. State Highway Dept. of Ga., 211 Ga. 876, 877, 89 S.E.2d 652, 653.

The evidence clearly showed that expansion of the facilities at the River Bend School created a necessity for new sewage facilities. The fact that there was a convalescent home and other buildings along the extension line which would be permitted to make use of the extension does not affect the fact that the sewer easement furthered school purposes for the school at the end of the line.

The test is not 'the number of people that it accommodates, or who use it, but rests upon the fact that everybody who has occasion to use it may lawfully and of right do so . . . (T)he mere fact that it is actually used by one or two individuals does not negative the public character of the use.' Harrold Brothers v. Mayor etc. of Americus, 142 Ga. 686, 688, 83 S.E. 534, 535. This principle has been followed in Bradley v. Lithonia & Arabia Mountain Railway Co., 147 Ga. 22(2), 92 S.E. 539; Rogers v. Toccoa Electric Power Co., 163 Ga. 919(4b), 137 S.E. 272; Housing Authority etc. v. Johnson, 209 Ga. 560, 562, 74 S.E.2d 891; Hightower v. Chattahoochee Industrial Railroad, 218 Ga. 122, 124, 126 S.E.2d 664; Austin Enterprises, Inc. v. DeKalb County, 222 Ga. 232, 233(1), 149 S.E.2d 461; Department of Transportation v. Livaditis, 129 Ga.App. 358, 199 S.E.2d 573.

In alignment with this test, we hold that since the evidence shows a necessary school purpose in constructing the sewer line, it is immaterial that other individuals may be served. It is only 'if, under pretext of such necessity, the property of one is taken for the private use of another, the courts should declare the law inoperative.' Code § 36-102. See Housing Authority etc. v. Johnson, 209 Ga. 560, 562, 74 S.E.2d 891. The condemnation of land for a sewer easement for school purposes was therefore justified.

2. Does the Hall County Board of Education have authority to condemn land outside its boundaries in order to connect its sewer line extension with the City of Gainesville sewer facility? The cases on this question were discussed thusly in Howard v. City of Atlanta, 190 Ga. 730, 732, 10 S.E.2d 190, 192: '(W) hether or not a municipality can in fact exercise a given power beyond its territorial limits, in the absence of express language to such effect depends, at last, upon the nature of the subject matter to which the power relates, and whether a full and complete exercise of the power reasonably requires action beyond the territorial limits of the municipality. 'The general doctrine that a municipal corporation can only exercise its powers within its corporate limits is founded on the fact that generally no authority is given by charter to act beyond such limits; and hence the corporate authorities are restricted in that regard by the general rule that they can exercise only such powers as are granted by express words. The general rule is, however, subject to the qualification that a municipal corporation may also do those things which are fairly or necessarily implied in or incident to the powers expressly granted.' Dillon on Mun. Corp., 1627, note. Thus in Langley v. Augusta, 118 Ga. 590, 45 S.E. 486, 98 Am.St.R. 133, it was said that an express grant of authority to a city to construct sewers and drains should be held to include the power to construct them beyond the corporate limits, where it is found by the authorities to be reasonably necessary in order to establish a complete and useful system of sewerage. The court took cognizance that it would be impracticable and most undesirable to require a municipality to confine such works within its limits. Loyd v. Columbus, 90 Ga. 20, 15 S.E. 818, which constituted a ruling to the contrary, was criticized and doubted by the court. In Hall v. Calhoun, 140 Ga. 611, 79 S.E. 533, the court held that the City of Calhoun had authority under the terms of its charter to establish and construct a system of waterworks, and that under this grant it could, where necessary, obtain by contract a source of water beyond its limits. The court said that Loyd v. Columbus, supra, 'will not be extended."

One of the cases therein considered dealt specifically with drainage and sewerage construction beyond the city boundaries. That was Langley v. City Council of Augusta, 118 Ga. 590, 45 S.E. 486 where the Supreme Court stated in headnote 2 that, 'Upon reason and authority the acquisition of land for the purpose of perfecting a system of drainage or sewerage and the construction of drains and sewers as a part of such system should be an...