167 Ga. 110 | Ga. | 1928
In section 5306 of the Civil Code it is provided that “All corporations or persons authorized to take or damage private property for public purposes shall proceed as herein set forth.” And then follow other provisions as to payment or tender of compensation; and if the parties can.not agree upon the
There is nothing in any of the sections that expressly gives to the condemnor the right to institute the proceedings to condemn after having entered the dismissal in the case. If it was not satisfied with the award made by the assessors, it could have entered an appeal under the provisions of the statute and could then have had a de novo investigation as to the value of the property, the damages to be paid, etc.; and the award of the assessors would have been suspended until the final disposition of the cause. But we do not think that after an award had been entered, fixing the amount of the compensation to which the owner was entitled, the condemnor could have an entirely de novo trial by instituting new proceedings, as it would have had in case of an appeal. It is insisted by counsel for the plaintiff in error that “A proceeding to condemn property for public use is not in the nature of a contract between the owner and the condemning party; and until the property is actually taken and compensation is made or provided, the power of the condemning party over the matter is not exhausted,” and cases are cited to sustain this contention. And further, that, “Until the property is actually taken possession of or paid for, the landowner has no vested interest.” And the plaintiff in error argues and insists that it has the right to institute the new proceedings in this case. In one sense, there was in this case at the time of the dismissal possibly no vested right in the landowner in the ordinary sense in which that term is used; and the condemnor, under the various authorities, might abandon the proceedings and give notice of such abandonment to the landowner,^ and thereby prevent the collection of the amount awarded by the assessors. But in another sense, the landowner did acquire, if not a vested right in the amount of the award or judgment, a right to set up the finding of the award as an estoppel, in the
We are of the opinion that this is a case where a court of equity should have interfered to protect the landowner in her rights.
Judgment affirmed.