Savannah, F. & W. Ry. Co. v. Postal Tel. Cable Co.

• Decision Date: 28 February 1901
• Citation: 38 S.E. 353,112 Ga. 941
• Parties: SAVANNAH, F. & W. RY. CO. v. POSTAL TEL. CABLE CO.
• Court: Georgia Supreme Court

38 S.E. 353

112 Ga. 941

SAVANNAH, F. & W. RY. CO. v. POSTAL TEL. CABLE CO.

Supreme Court of Georgia

February 28, 1901

Syllabus by the Court.

1. Though a statute authorizing the exercise of the power of eminent domain for the purpose of condemning property for a public use may not provide for an appeal from the award of the assessors of the compensation to be paid for the property condemned, it is not for this reason unconstitutional.

2. In a proceeding instituted by a telegraph company, under the provisions of the act of December 20, 1898, to condemn so much of the right of way of a railroad company as may be necessary for the erection, maintenance, and operation of its telegraph lines, it is not essential that the telegraph company should affirmatively show that, in order to erect maintain, and operate its telegraph lines between the points proposed, it is necessary for it to condemn such right of way; nor is it essential for it to show that it is necessary for it to use the particular portions of such right of way which it proposes to condemn.

3. Whether or not "the manner in which the telegraph company proposes to construct its lines" and the location of the telegraph poles, wires, etc., upon the railroad company's right of way, as indicated in the notice served by the telegraph company upon the railway company in the condemnation proceeding, would so essentially injure or interfere with the necessary use by the railway company of its right of way for railroad purposes as to render the grant of an interlocutory injunction proper, is a question to be determined by the trial judge, under the facts and circumstances submitted for his consideration; and unless his discretion, in this respect, has been clearly abused this court will not interfere with the same.

4. There was no abuse of discretion in the present case in refusing the injunction prayed for.

Error from superior court, Chatham county; R. Falligant, Judge.

Suit by the Savannah, Florida & Western Railway Company against the Postal Telegraph Cable Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Chisholm & Clay, for plaintiff in error.

Garrard & Meldrim, for defendant in error.

FISH J.

The Postal Telegraph Cable Company served the Savannah. Florida & Western Railway Company, in the county of Chatham, where the railway's main and principal office is located, with a notice of the intention of the telegraph company to condemn certain portions of the right of way of the railway company from Albany to Thomasville, and from Thomasville to Valdosta, through the counties of Dougherty, Mitchell, Thomas, Brooks, and Lowndes, for the purpose of constructing, maintaining, and operating a telegraph line thereon. The railway company sought to enjoin such condemnation proceeding. Upon the hearing the judge refused to grant an interlocutory injunction to which ruling the railway company excepted, assigning error upon the refusal to grant the temporary injunction prayed for, upon each and all of the grounds set, forth in the petition. The allegations in several of the paragraphs of the petition for injunction as to the illegality of the condemnation proceeding, and the unconstitutionality of the statutes upon which it is based, are so general and indefinite that, when taken in connection with the assignments of error in the bill of exceptions, they do not present any question for consideration by this court.

1. The condemnation proceeding was instituted by the telegraph company under the provisions of the act of December 20, 1898 (Acts 1898, p. 54). The petition of the railway company for an injunction alleged "that no valid appeal is provided by law under the statutes of the state of Georgia, and particularly under the statutes referred to in the notice hereto attached, allowing an appeal to petitioner from the decision of the arbitrators, which failure makes such statutes unconstitutional, illegal, and void; and, if said condemnation proceedings are allowed to be prosecuted, any award thereunder against petitioner would be the taking of property without due process of law, illegal, and void." The act of December 20, 1898, amends the condemnation statutes codified in sections 4657 to 4686, inclusive, of the Civil Code, by providing a method whereby a telegraph company may, in one proceeding, instituted in a single county condemn so much of the right of way of a railroad company as may be necessary for the purpose of erecting, maintaining, and operating its telegraph lies along and upon such right of way. This act does not itself provide for any appeal from the award of the assessors therein provided for, and the contention of the railway company is that the provisions in reference to an appeal contained in the sections of the Civil Code which it amends do not and cannot apply to condemnation proceedings instituted under this amendatory act. It will be observed that the constitutionality of the statute is attacked solely on the ground that no appeal is therein provided for. We will not stop to inquire whether or not there can be an appeal from the award of the assessors in a condemnation proceeding instituted under the provisions of the act of December 20, 1898, for we are clearly of opinion that a mere failure to provide for an appeal in a condemnation statute does not render the statute unconstitutional. It takes more than this to invalidate the statute upon constitutional grounds. In Oliver v. Railroad Co., 83 Ga. 257, 9 S.E. 1086, it was held: "The method of ascertaining what is just and adequate compensation is matter of adoption and regulation by the legislature. Inasmuch as trial by jury is not a constitutional right in cases involving the power of eminent domain, a statutory appeal given in such cases from the award of assessors is subject to legislative discretion both in its allowance and in the consequences of its allowance; the latter being in the nature of terms and conditions of the appeal system." Counsel for the railway company rely upon the decision of this court in Southwestern R. Co. v. Southern & A. Tel. Co., 46 Ga. 53; but Chief Justice Bleckley, in the case from which we have just quoted, correctly says that the decision in that case "is no direct adjudication on this point, there being another ground upon which the...