119 Ga. 22 | Ga. | 1903
Sams, together with other citizens of Cherokee county, petitioned the ordinary of that county for the opening and laying out of a public road through a part of a named district therein.- The petition set forth accurately where the desired road was to begin, where it should run, through whose lands it should be laid out, where it should end, its probable length, and to what class of road it should belong; and a plat of the proposed road was attached to the petition. Upon the filing of this petition the ordinary appointed three commissioners to examine into the matter, and they were directed, in the event they found that the road as contemplated by the petition was one of public utility, to mark out the same and report to the ordinary under oath. The commissioners complied with the terms of the order, reported favora
The General Assembly has construed this act as did the ordinary in this case; for in the act approved December 18, 1901 (Acts 1901 p. 79), the persons upon whom the duty is imposed of laying out new roads are designated as “ special road commissioners.” Inasmuch as the persons to lay out new roads were re
The third assignment of error in the petition for certiorari is not verified by the answer of the ordinary, but on the other hand it affirmatively appears that there was no objection to the evidence referred to. The court was, under the law, bound to rely upon the answer rather than upon the petition for certiorari.
The judgment of the ordinary, approving the return of the commissioners and ordering the laying out of the road in accordance with the description set out in the petition,' the plat thereto attached, and the report of the commissioners, was sufficiently defi
Under the law the order complained of is necessarily a conditional one. All such orders are. When land of a citizen is taken for a public road, he must be. paid for it before it is taken. Ample machinery is provided for fixing the amount of damages to the citizen; and if, after the road is laid out, the damages allowed “ transcend the utility of such road,” the ordinary may revoke the road altogether, or may order it altered so as to avoid the land damaged. Political Code, § 566. The road can not be finally opened and appropriated to the public use until the question of damages to citizens whose land is taken therefor is settled and it is determined by the ordinary or county commissioners whether payment as fixed will be made, or the road revoked or altered.
The foregoing covers all the questions argued before this court .in the brief of counsel for the plaintiff in error. We find no error in any of the rulings made by the ordinary, and consequently no error in the judgment overruling the certiorari.
Judgment affirmed.