162 Ga. 84 | Ga. | 1926
(After stating the foregoing facts.)
On the hearing of the application for a temporary injunction the case was submitted to the judge upon the petition, answers, and an agreed statement of facts. The petition and answers were duly verified. In the answers the material allegations contained in the petition in the suit filed by plaintiffs in Telfair superior court, and in the petition in the present case, were denied. In these circumstances the trial judge was authorized to find that Cook and Wilcox had no such cause of action as they seek to assert in their suit in Telfair superior court, and no such cause of action as they undertake to enforce in the present suit. Under the familiar rule that this court will not reverse a refusal of a temporary injunction, where the facts are conflicting, unless the chancellor’s discretion is abused, which we do not find, we could affirm the judgment below and leave the case there; but as important questions of law are raised in the record, and will be involved in the final disposition of the case, we shall proceed to examine and pass upon them.
Where the State highway board instituted a proceeding to condemn lands of the plaintiffs for the purpose of laying out and building a public road thereon and a free public bridge across a navigable river, and where the plaintiffs had previously instituted a suit against the counties which will be connected by such bridge, to recover damages for taking and appropriating a right of way
The main and controlling question in this case is, whether the State acted for itself or whether it acted for the Counties of Jeff Davis and Telfair, in bringing the condemnation proceeding sought to be enjoined by the plaintiffs in this case. It is earnestly insisted by counsel for the plaintiffs that this proceeding was brought in behalf of the counties and not in behalf of the State. It is expressly denied by the defendants in their sworn answers that this proceeding was instituted by the State highway board in behalf of the counties. They expressly assert that it was brought in behalf of the State. But counsel for plaintiffs insist that, notwithstanding this denial, as a matter of law this proceeding is one in behalf of the counties, and not one in behalf of the State. This brings us to determine whether, under the law, this proceeding was brought in behalf of these counties. It does not purport to be so brought. Does the law malee it a proceeding for and in behalf of these counties? The argument in favor of an affirmative answer to this question is based upon the provisions of law which we will now notice. The road authorities of the respective counties are required to furnish free to the State highway board all necessary rights of way for the designated roads in each county, constituting any portion of the system of State-aid roads. Acts 1919, p. 251; 8 Park’s Code Supp. 1922, § 828 (uuu). No road shall become a part of said system of State-aid roads until the same shall be so designated .by the State highway board by written
A system of State-aid roads “for the purpose of interconnecting the several county-seats of the State” has been created. These roads “shall be designated, constructed, improved, and maintained by the State, under the State highway department.” Acts 1919, p. 247; 8 Park’s Code Supp. 1922, § 828 (kkk). The State highway board is empowered and required “to designate, improve, supervise, construct, and maintain a system of State-aid roads, provided that no road shall become a part of said system until the same shall be so' designated by the State highway board by written notice to the county road authorities concerned.” Said board is empowered and required “to provide for surveys, maps, specifications, and other things necessary in designating, supervising, locating, improving, constructing, or maintaining said State-aid roads, or such other public roads as may be provided” under the above act. Acts 1919, p. 247; 8 Park’s Code Supp. 1922, § 828(ooo). “The State highway board shall have authority to plan and eon
It follows, from the principle announced in the foregoing division of this opinion, that the contention of counsel for plaintiffs that this condemnation proceeding could only be brought under the Civil Code, § 640 et seq., and not under the act of 1914, is not well taken. When the county road authorities seek to lay out a new public road, they must pursue the method laid down in the Civil Code, § 640 et seq. Whenever a public road is already
The condemnation proceeding in this case was brought under the act of 1914. Acts 1914, p. 92; 4 Park’s Code, §§ 5246(a), 5246 (i). It is insisted by counsel for the plaintiffs that, if this act of 1914 applies to a case where the State highway board is undertaking to condemn a right of way for a State-aid road, the facts of the present case do not bring it within the purview of that act. The first section of that act is as follows: “Whenever the State of Georgia or the United States shall desire to take or damage private property in pursuance of any law so authorizing, and shall find or believe that the title of the apparent or presumptive owner of such property is defective, doubtful, incomplete, or in controversy; or that there are or may be persons unknown or nonresident who have or may have some claim or demand thereon, or some actual or contingent interest or estate therein; or that there are minors or persons under disability who are or may be interested therein; or that there are taxes due or that should be paid thereon; or shall, for any reason, conclude that it is desirable to have a judicial ascertainment of any question connected with the matter; such government may, through any authorized representa
The next contention of the plaintiffs is that they are entitled to recover damages for their lands lying on both sides of the river, and that they can not recover all these damages under the condemnation proceeding instituted by the State highway board in Jeff Davis superior court. The act of 1914 provides that the proceeding shall be brought in the superior court of the county having jurisdiction. In condemnation cases the venue is in the county in which the land lies. If a single tract of land sought to be condemned lies in two counties, the condemnation proceedings may be had in either. It would be impracticable to have two condemnations where a right of way over an entire tract of land is sought to be taken. In such a case the tract of land is a unit, and its value can be more accurately arrived at by condemning it as a unit. 10 R. C. L. 206, § 176. So this court held that where land sought to be condemned under the Civil Code (1910), § 5206 et seq., is partly located in two counties, the proceeding could be had in either county. Whitney v. Central Georgia Power Co., 134 Ga. 213 (67 S. E. 197, 19 Ann. Cas. 982). While in that case this court was dealing with a different statute, the principle therein announced is equally applicable when the proceeding is had under the act of 1914. So in this case, if the proceeding had been brought in Jeff Davis superior court to condemn a tract of land of the plaintiffs, lying on both sides of the river, the proceeding could have been properly brought in the su
The plaintiffs next insist that in this condemnation proceeding the highway board is seeking to condemn a right of way over two tracts of land, one owned by Cook and the other owned by Cook and Wilcox, and that this can not be done in one proceeding. It must be borne in mind that while this proceeding was brought to condemn a right of way across two tracts of land, it was brought to condemn lands alleged to belong to Cook alone. It is alleged that the two tracts are the property of Cook. While the tracts are thus alleged to belong to Cook, the proceeding was one in rem, and sought a judgment in rem condemning a right of way over these two tracts of .land. We see no good reason why, if the proceeding had been one in personam, the board could not proceed to condemn a right of way over two tracts of land belonging to the same person. So when the proceeding is in rem, we see no valid reason why it can not proceed against two tracts of land. The very purpose of the proceeding in rem is to bind all parties who may have any interest in the res. If in such proceeding two tracts are alleged to belong to one individual, but it
We do not find that there is merit in any of the other assignments of error in this case.
Judgment affirmed.