On August 4, 1966, and pursuant to the provisions of Ch. 36-3 of the Code of 1933, Georgia Power Company served a notice on B. & W. Hen Farm, Inc. of its need for and its intention to acquire by condеmnation an easement of right of way for electric distribution purposes on and over a tract of land it owned in Jackson County. Such notice stated that the cоmpany would condemn and thus acquire an easement of right of way to a described strip of land 100 feet wide and 824 feet long on and over its land; also the right of ingress and еgress, at any and all times, to and from said right of way by the nearest and most practical route, using existing roads as far as possible for the purpose of constructing, insрecting, maintaining and rebuilding its transmission lines; and also the right and power by any action at law or in equity, by injunction, ejectment, or otherwise to prevent the erection, оr after erection to cause the removal, of any building or other structures, except fences, on or from said right of way whether the defending party be a successor in title to the said condemnee or not. The company named Herman J. Cook as its assessor and called on the condemnee to name its assessor. Thе condemnee declined to name an assessor and on August 26, 1966, filed a petition in the Superior Court of Jackson County in which it prayed for an *831 injunction to prohibit the condemnor and its assessor from taking any further action in the former’s condemnation proceeding on the ground that condemnor, under the notice given condemnee, could not legally acquire “the right of ingress and egress, at any and all times, to and from said right of way [the 100' wide strip] by the nearest and most practical route, using existing roads as far as possible” for the purpose of constructing, maintaining and rebuilding its electric line or lines; and on the ground that the condemnor, by its condemnation proceeding is seeking to condemn and thus acquire greater easement rights in condemnee’s property than those allowed by law. Its petition was dismissed on general dеmurrer thereto and the appeal is from that judgment. Held:
1. In condemnation proceedings brought under Ch. 36-3 of the Code the only issue before the assessors or a jury on appeal is the amount of compensation to be paid for the property taken and neither the assessors nor a jury can determine whether the condemnor is proceeding legally. The remedy of the landowner is to apply to a court of equity to enjoin illegal proceedings.
Atlantic & B. R. Co. v. Penny,
2. The notice of an intention tо condemn an easement in property which must be given under
Code
§ 36-313 requires the condemnor to describe the property in which an easement is to be acquired with the sаme degree of definiteness as is required in a deed to land.
Gunn v. Georgia Power Co.,
3. Section 36-801 of the Code of 1933 provides that power companies “shall have the right to purchase, lease or condemn rights-of-way or other easemеnts over the lands of others in
*832
order to run lines of wires ... or for other uses necessary to said purposes.” This section of the Code limits the interest in land which a power сompany can condemn for electric distribution purposes. The petition alleges that the power company by its condemnation proceeding seeks to acquire a greater interest in the condemnee’s land than that which it is authorized by law to take. To this we agree. On acquisition of the easement which the рower company seeks to acquire as a right of way for its transmission lines, the condemnee as the fee owner of the land involved will be entitled to use such land for any purpose not inconsistent with the full and complete enjoyment of the easement sought to be acquired.
Atlantic C. L. R. Co. v. Postal Tel. Cable Co.,
While one provision of the condemnation notice states that the land between the towers, frames and рoles of the company’s transmission lines on and over the condemnee’s land may be used by the owner of such land or its assigns for agricultural or other purposes provided such use is not inconsistent with the interest sought to be condemned, yet a prior provision of the condemnation notice expressly prohibits the condemnеe from placing a building or structure of any type or character on the premises involved except fences. By thus expressly spelling out in the notice the only purpose for which the condemnee may use its property after condemnation, namely fences, the use of it for a building or structure of any type or chаracter by the condemnee will be a prohibited use; and *833 this is true even though it be a building or structure which would not interfere with or restrict in any way the purpose for which the рower company expects to use such easement rights after acquisition and that provision in the notice which states that the condemnee or its assigns aftеr acquisition of the easement rights sought to be condemned may continue to use the premises involved “for agricultural or other purposes, provided such use is not inconsistent with the rights sought to be condemned” is defined and its meaning is plainly expressed by the prior statement in the condemnation notice that the condemnee, аfter acquisition of such easement, will not be permitted to use the premises involved for any purpose except the erection of fences “on or from said right of way.”
Conceivably the condemnee may in the future desire to place or erect structures or other improvements on such land which will not interfere with the full and complete use and enjoyment of the easement which the condemnor seeks to acquire by this condemnation proceeding and this, we hold, it should have a right to do.
Nothing here ruled is in conflict with the decision in
Georgia Power Co. v. Sullivan,
The judgment appealed from, however, is affirmed on condition that the condemnor, appellee, in this case amend its notice within five days after the rеmittitur is filed with the clerk of the trial court by striking those two provisions of the condemnation notice pointed out and dealt with by us in this opinion. If such amendment is not offered, then the judg *834 ment stands reversed. The costs of this appeal however are to be paid by the appellee in either event.
Judgment affirmed on condition.