119 Ga. 479 | Ga. | 1904
The Atlantic and Birmingham Railroad Company instituted proceedings to condemn “two hundred and fifty (250) feet right of way, sixty feet on the east, and one hundred and ninety feet on west side of the center line,” through a described tract of land, the property of Z. T. Penny. A majority of the assessors chosen in the manner prescribed by law filed an award fixing the damages to be paid at $400. The third assessor refused to agree to this, and filed with the award a writing stating that in his opinion the amount should have been $500. Penny entered an appeal from the award of the assessors to the superior court. When the case came on for a hearing in the superior court, Penny filed a written motion to dismiss the entire proceeding, upon the ground that the amount of land sought to be taken was not necessary for the right of way, stations, terminal facilities, cuttings, embankments, and other purposes for which the railroad company could lawfully take private property; that under its charter 100 feet was all that could be condemned for a right of way, and that 50 feet on each side of the track would be ample for all of the legitimate purposes of the company; and that the real purpose of the condemnation was to secure property to be leased for factories, plants, business houses, etc. The plaintiff then amended its proceedings by alleging that the land sought to be condemned was necessary and required, not only as a right of way, but for a freight and passenger depot and purposes therewith connected, including station grounds, yards, tracks, warehouses, etc. The court allowed the amendment, and then overruled the motion to dismiss. Penny filed exceptions pendente
The exact quantity of land that may be necessary for the construction and maintenance of stations, terminal facilities, and the like can not be definitely fixed, even by prescribing a maximum amount, as in case of the right of way; and therefore the General Assembly has prescribed that the company may acquire as much “as may be necessary” for this purpose. § 2167 (3). It is provided that in the event the company can not procure from the owners title to the right of way or other lands necessary and proper for the construction of stations, terminal facilities, and the like, such property may be acquired' in the manner prescribed in the’code. Civil Code, § 2170. The manner' prescribed in the
If the land sought to be taken is to be used for the purpose of a right of way only, the corporation must determine how much it shall take, and in no event can it take more than a strip 200 feet in width. If the land is sought to be taken for the purpose of making necessary cuttings and embankments, or for stations, terminal facilities, and the like, the corporation, after an investigation as to its needs, is authorized, under the act, to determine in the first instance how much is nec.essary for these purposes. After the corporation has determined this question, if it can not
Judgment on the bill of exceptions of the railroad company reversed; writ of error sued out by Penny dismissed.