Parham v. The Justices Of The Inferior Court Of Decatur County And Others

• Decision Date: 31 January 1851
• Docket Number: No. 66.,66.
• Citation: 9 Ga. 341
• Parties: Ransom Parham, plaintiff in error. vs. The Justices of the Inferior Court of Decatur County and others, defendants in error.
• Court: Georgia Supreme Court

9 Ga. 341

Ransom Parham, plaintiff in error. vs. The Justices of the Inferior Court of Decatur County and others, defendants in error.

No. 66.

Supreme Court of the State of Georgia

JANUARY TERM, 1851.

Application for an injunction, in Decatur Superior Court. Decision by Judge Warren, 6th of December, 1850.

This was an application for an injunction to restrain the Inferior Court and Commissioners of Roads, from opening a newpublic road, passing through the enclosed and unenclosed lands of complainant, Ransom Parham. The bill alleged, that a petition was presented to the Court for the opening of this road, signed by many persons who did not live in the neighborhood; that the same was gotten up, not for the public convenience, but by persons interested in having a road to a certain landing on Flint River, where the new road would cross; that a counter-petition was presented to the Court, which they refused to consider; that the Court evidenced their partiality in the appointment they made of reviewers and commissioners to open the road—the same not being proper and discreet persons—one of them wishing the road to pass his house, where he kept spirits to retail; that another had hut lately removed in to the county, and the third having acted as main agent in procuring signatures to the said petition, and all of them being among the petitioners for the road; that the complainant objected to their appointment, or the appointment of any one, because the road prayed for was not required for the public convenience, nor was it the nearest and most practicable route between the points specified as the termini of the road; because it would cause irreparable injury to the land and growing crop of the complainant, and because complainant offered to the Court, at his own expense, to cut out and open a shorter and better road between the points designated; that the Court, notwithstanding his objections, appointed the reviewers, two of whom afterwards reported that they had viewed and marked out the contemplated road; which return complainant objected to as illegal—

1st. Because one of the commissioners failed to act or join in the report; and

2d. Because it did not appear that the commissioners, before entering upon their duty, were sworn (as required by law) before a Justice of the Peace;

That the Court overruled the objections, and granted an order opening the road—the execution of which order was now sought to be enjoined.

By an amendment to the bill, it was alleged, that the Inferior Court had not, nor had any of the defendants paid, or offered topay, any of the damage, (amounting to at least $2,500), which would be done to the land of complainant, but threatened to pro-ceed to open the said road, without and before paying, or offering to pay the same; whereas, by law, he was advised and believed, that no authority or power was vested to open said road, until the damages were paid, or full and just compensation tendered to complainant.

The prayer was for a perpetual injunction to restrain defendants from cutting a road through complainant's land, whether enclosed or unenclosed; or at least, they should be enjoined, until full and just compensation should be paid or tendered to complainant.

Upon hearing argument, the presiding Judge refused to grant the injunction, upon the following grounds:

1st. Because the laying out and altering new and old roads, is expressly within the power and control of the Justices of the Inferior Court, subject alone to their discretion as to whom they shall appoint to review, lay out and open said road.

2d. Because as to improved or enclosed lands, the Statute of 1799 provided compensation to those injured by the opening said roads, and that if the provisions of that Statute were follow-ed, the Inferior Court may take any improved lands they please for such road; and after such lands are thus appropriated, if the owner feels himself aggrieved, he may have the damages assessed by a Jury, and enforced by mandamus.

3d. Because the defendants, by the Act of 1818, have the right, power and authority to take and appropriate the wild and unenclosed lands of complainant, without any compensation— the Court holding the said Act to be constitutional and valid.

To these rulings and decision of the Court, exceptions were filed, and error has been assigned thereon.

S. T. Bailey, for plaintiff in error.

Law & Sims, represented by B. Hill, for defendant.

By the Court.—Nisbet, J., delivering the opinion.

The presiding Judge held, in this ease, that it was competent for the Inferior Court, under the laws of this State, to lay out and open a road through the unenclosed lands of the complainant. This power is denied in this record. We are, therefore, called upon to determine whether, according to laws now in force in Georgia, the Inferior Court can exercise this power. It is a. question of some magnitude in principle, and of great practical moment. It is very clear, that the Legislature may take the property of a citizen for purposes of public necessity or public utility. All grants of land are in subordination to the eminent domain which remains in the State; and from the necessities of the social compact, they are subject to this condition. The sovereign authority of the State, acting through the Legislature, is bound to protect and defend the State, and to promote the public happiness and prosperity of the people; and the Legislature is to judge when the public necessity or public utility requires the appropriation of the property of the citizen. I need not enlarge upon these propositions—they are the law of this Court, more than once promulgated. Nor do we deny, that a: highway is a work of public utility. It is necessary to commerce and intercourse. Nothing can be more conducive to the social well-being and commercial prosperity of a State, than roads. It were pagan and aboriginal not to have them. Our doctrine farther is, however, that the property of the citizen cannot be taken for any purpose of public utility or convenience, unless the law which appropriates it, makes provision for a just compensation to the proprietor. This is true at Common Law, according to the lex terrÅ“ recognized and affirmed by Magna Char-ta, and it is true by the special ordainment of the Constitution of the United States.

I propose first to show, that the several Acts of the Legislature authorizing the building of roads, make no provision whatever for compensation, when the unenclosed lands of the citizen are taken for the purpose of a highway. The authority to lay out roads, is vested in the Inferior Court, by the Acts of 1799 and of 1818. Prior to 1799, the Inferior Court could and did lay out roads, but I find no Act of the Legislature, prior to thattime, which gives them any powers in relation to roads, different from those conferred by the Acts of 1799 and 1818. These two Acts contain all the provisions of law of force in this State relative to laying out public roads, and making compensation to the citizen. By the 1st section of the Act of 1818, it is declared, that "On application to the Inferior Court for any new road, or any alteration in an old road, the said Justices shall proceed to appoint three discreet and proper persons, residing in the neighborhood where such road is intended to pass, and in case they find it of public utility, they may proceed to mark out the same, on oath taken before any Justice, and report to said Court—the Clerk of which is hereby required to notify the Commissioners of Roads of such report." Prince, 735.

By the 19th section of the same Act, it is declared, that "In all cases where commissioners have been or may hereafter be appointed for the purpose of reviewing any new road intended to be laid out, and shall report to the Inferior Court the propriety of opening the same, the said Court may, if they or a majority of them deem it advisable, pass an order for opening such road." Prince, 739.

Here, then, we have a general power to lay out roads deposited with the Inferior Court. The Legislature has made them its agents for the exercise of the sovereign power over this subject-matter. They are, however, subject to the paramount authority of the Legislature. Notwithstanding this delegation of power, the Legislature may, if it will, exercise it. It is not pretended that there is any authority for the laying out and opening this road, but the general Acts before referred to. The only provision of law for making compensation in cases of a public road, is found in the second section of the Act of 1799, which was re-enacted by the 34th section of the Act of 1818. The 2d section of the Act of 1799, is in these words: "And when any person or persons shall feel him, her or themselves aggrieved by reason of any road being laid out through his, her or their enclosed ground, it shall be the duty of any two or more of the Justices of the Inferior Courts, on application in writing by the person or persons injured, to issue a warrant, under their hands, directedto the Sheriff of the county, to summon a Jury of freeholders, who shall be sworn to assess such damages; and that the Sheriff shall make and return a true inquisition thereof to the next Inferior Court; and it shall be the duty of such Court to order the amount of damages so assessed, to be paid out of the next county tax, or out of any public moneys belonging to the county fund: Provided, nevertheless, that when it shall appear to the Inferior Court, that the damages so assessed transcend the utility of that part of said road, such Court shall order the same to be altered in such manner as to avoid the enclosed ground so damaged, unless the person complaining shall agree to accept such compensation as shall be deemed just and reasonable by said Court." Prince, 733, 740.

This law makes provision for compensating the owner only when a public road is laid out through his enclosed ground. There is not, so far as I can ascertain, any provision in our...