*1 361 fеndant, grant require would new trial. See Simms Floyd, 24,. (3); Tatum, App. Lewis 719, except Wyattr
Judgment concur, All the Justices affirmed. who J., dissents.
Wyatt, I ruling J. dissent 1 and the headnote corresponding judgment division of the and from opinion, of affirmance.
GEORGIA POWER COMPANY v. FOUNTAIN et al. 11, Rehearing No. September 17177. 1950. denied October *4 Miller, Miller MacDougald, & Miller, Troutman, Sams & Schroder, plaintiff and T. Smith, for M. error.
Smith, Rogers Kilpatrick, Cody, McClatchey, & E. D. Smith Jr., Harry persons parties. S. Baxter, interest, at
Victor Davidson, Jackson, Jackson Evans, & and Frank 0. contra. Peck, Augustine
G. S. Mason, J. Walter Sams, Sheats, Harold Josiah T. Rose, McElreath, Wotton, Walter Grigsby H.
persons interest, parties. at (After stating facts). Justice. foregoing This
Candler,
involves the doctrine
of election of
the prin
remedies and
ciple
estoppel resulting
therefrom. Beard
Beard,
(29
Estoppel by
E.
S.
election
where
results
choice is exercised between inconsistent remedies. Chapple Hight,
prosecu
195). has been An defined as election of remedies coexisting proce of or more and between two different modes 18 on the state facts. same dure and relief allowed law “incon been said the so-called Jur. It has 129, Am. § sistency reality inconsistency an between of remedies” is in cer mean themselves, must taken to that a the remedies but be is facts, remedy, of a certain tain state of relied on as basis relied facts repugnant and to another state inconsistent with 12. Two remedy. 135, on as the of another 18 Am. Jur. basis § inconsistent, are if the one assertion involves remedies negation repudiation Lott, the other. Peterson v. 200 Ga. (37 358). proceeding purpose at 390 A law for prop ascertaining fixing private for and the amount to be being public which is taken for a use incоnsistent with erty 'is private remedy taking prop equity prevent afforded public v. erty purposes for other than use. Bibb Brick Co. Georgia (102 Ry. Co., Central S. E. 150 65 necessary remedy taking inferentially is first admits public use, only be for and value issue to determined tak proceeding; necessity in the the latter denies for such a prevent same. said: ing, and seeks And this court has part proceed an in land “Where the owner of easement takes public an ings selecting to condemn for purposes, his interest an full after offering evidence, etc., accepts and award assessor, ob estopped payment, thereby urging owner will such equitable procеeding injunction, etc., jections, Georgia Ry. Co. v. Bibb proceedings.” Central condemnation Birmingham (99 See Atlantic & Co., Brick 149 Ga. S. E. also 38 (46 Georgia 665); 119 Ga. S. E. Penny, . 479 Co. R 864); Venable, 341, R. Co. Granite Ct. Co., Sup. v. & R. 208 U. S. Winslow B. O. no And merit 388); 210, 179. there is ed. 10 R.C.L.
L. applied by announced and this the rule here made that contention supra, Ry. Brick Georgia Co. v. Bibb in Central court prеsent plaintiffs, because the applied case, in the not be should accepted the awards made landowners, had interested as the true reas for these several involved, this is property ons: at
(a) may prosecute actions “No two courts suitor party, against the same time, cause, for the same thе same plaintiff require the may the defendant in such a case simultaneously; if commenced prosecute, *6 he will elect which the good a defense shall be to the former pendency the of and 3-601; John- Code, times.” at different if commenced latter, § judge 413). After the trial (196 E. Ga. 667 S. Epting, 185 son v. con- plaintiffs, by the injunction, temporary grant to a refused to and elected equitable suit, abandoned their duct, voluntarily they participating, as remedy, by thereafter pursue an inconsistent proceedings. condemnation in counsel, the personally by and did, (132 Fla. 1176 Pulver, 101 Corp. v. 21; Intertype 20 C. J. § 793). 830, 135 So. So. and proceedings
(b)
in the condemnation
The
made
awards
thе
the cleric
by the
in the office of
filed
assessors
afterwards
tribunal.
competent
judgments
by
rendered
superior court were
a
(149 E.
Georgia Ry.
Consequently, trial should favor of it plea estoppel case, defendant’s and terminated the instant question without submitted appearing any the evidence do true. error alleged facts therein was not that the were It to proceedings taken the subsequent all in were so, since case required ruling ques- on nugatory, necessary any no or other presented by Glaze, tion the writ of error. Swofford except Judgment All concur, reversed. the Justices Duck- who worth, C.J., Hawkins, JJ., Head and dissent. concurring. Justice, opinion I am of the the
Almand, judgment right, by in reason of the de- this case is laches of the fendant in error. sought necessity in to raise owner this case the issue petition equity thе its filing enjoin a to condemnation at
inception. he petition, In this named an assessor and authorized him to other if proceed prayer with the assessor the owner’s interlocutory injunction an denied. the hearing After a on was a application temporary injunction, judge for a the dissolved temporary injunction. restraining order and refused This, a signal proceed to to the effect, a for the was assessors assess proceeding. judg- From property the condemnation this appeal exceptions. ment owner filed gave the no The law right go him equity a to into a court of to right determine the property. of the cоndemnor to take his He had day court. After the court had determined pro- the condemnor was ceeding lawfully to condemn the property, and with as- sistance of owner’s assessor an award was made and award was tendered owner, amount to the upon accept paid refusal to it same was into cоn- and the court, demnor thereafter possession went into permanent and made improvements at a cost of several thousand would dollars —it inequitable permit now be the owner to assert had that he right try the issue necessity on jury, petition before a in which he had been denied relief and in judgment which he acquiescеd. though the true, This is even owner tender refused amount fixed had assessors, pending appeal an from this award. In this after condemnor, case the owner’s petition injunction proceeded denied, was with the condemn- proceeding, ation permitted as the law do. it to It has amount of the award possession into court and has entered into property, making improvements valuable thereon, law right said had do; and, it after all done, this been has just permit it would neither fair nor retry the owner to necessity. though issue of Even the fact that the owner did appeal from the interlocutory order of judge denying injunction could operate as a final- and judgment, conclusive on the issue of necessity, the owner had the when inwas order for judgment, final to have the cause advanced and expedited for the hearing final (Code, 37-1101). The record *8 in this case petition shows that for injunction owner’s was 13, filed on November 1948, returnable to term,. the January 1949, Superior of Wilkinson Cоurt. The interlocutory order de- nying temporary injunction a was entered on 17, December 1948, and the assessors’ award was made on January 7, 1949. Shortly thereafter, the amount of the award was into court possession and the condemnor took of the property. appears It from the record that the lines and plаced structures prop- on erty by the condemnor prior were finished shortly to the trial jury before in January, petitioner’s a 1950. The prayer permanent injunction for a could have been by tried at jury a term, terms January 1949, and and October April, July, appears and passed any trial; nothing without in court pre- anything indicate reсord to that condemnor did that 1950, getting than January, vented the owner from trial earlier a opinion an earlier available. I am of or that trial was not year by by circumstances, standing that the in for a owner these judgment, failing prosecute and to final while his case a to improvements property, on the placing сondemnor was valuable jury pass upon having a by insisting was barred laches necessity. on the issue Wright City
In v. 75, 76, 192 Ga. Metter, S. E. 443), laches, equitable “The this court held. doctrine of origin, nature and petitioner concerns itself with the situation of applicant equity, as who seeks and with the infirmities not it legal process sought applicable, tо be arrested. When says that, given law, despite by which might to him be by might ordinarily assert, he to enjoy which and be able he neglect, reason conduct become barred delay, or other has reason equitable petition. words, by to on his In other relief equity not situation, may of the infirmities in his own he rights person en legal measured.” assеrt or have his A is not been injunctive titled he relief where it is has to shown subjected he to in guarding rights, careless his and if has been loss, own interests attending it was to because In proper at & Co,, time. Dulin Caldwell 28 Ga. was 539, Wood v. & Macon Brunswick Railroad it prevent injunction designed ruled and that the writ there done, strong what been reason undo has and without (in delayed progrеss laying right-of-way) has for, if until out a granted. injunction made, been should not be See headnote Co., supra. Railroad In Wood v. Macon & Brunswick Holt 690), person Parsons, it held was injunction when, knowledge with of his full is not entitled them delay asserting rights, guilty he has been laches expenditures large negligently suffered made has upon great injury inflicted party, another whom would be grant injunction. of an may
Though
had
it
be true that
the condemnor
this case
claim, by
full
of the owner’s contention
reason
notice
*9
of
injunction
beginning
at the
permanent
for
suit
filing of the
yet
(Code,
37-117),
proceeding in
case
this
the condemnation
injunction
pend
permanent
for a
was
petition
that thе
the fact
owner
the conclusion
the
preclude
ing
not of itself
does
prosecute
to
a suit
the failure
guilty
laches, in that
has been
of
consequences
failure to institute
as the
may
in the same
result
174);
Johnston
Tinsley
Though statutory the sought to property when the owner ceedings silent as to is the con- of the question the can raise be condemned Assembly fixes until the General property, to take his demnor court, by a be determined can question in which the time be de- part of owner must on timely action the issue circumstances the facts the court on by termined under consideration. ruling of dissenting. from the Justice, dissent I
Hawkins,
brethren, to the effect that
the condemnee
my
majority of
equitable
injunc-
proceeding for
estopped
prosecute
was
plain-
taking
necessity
for the
tion, raising
question
purpose,
participation
because
public
property
tiff’s
Chap-
prоceeding
Code,
under the
statutory condemnation
in the
assessor,
of an
the introduction
by
appointment
36-3,
ter
sought
condemned,
to be
of the land
the value
evidence as to
assessors.
I
filing
appeal
award
and the
wrong,
majority
reached
is
conclusion
think that
present
proceeding
not,
in the
plaintiff
reason
prosecuting
at
majority,
held
two
actions
the court
*10
against
the
the
same time for
same cause of action
the
same
party,
prohibited
3-601,
statutory
that
by
which is
Code
in
the
prose
proceeding
condemnation
instituted and
not
was not
was
by
present
by
cuted
the
con
plaintiff,
defendant,
but
the
the
by
demnor,
plaintiff,
рarticipating
and the
therein was defend
ing,
prosecuting,
and not
the
In that
the
proceeding
action.
question
necessity
taking
for
of
property
the
his
could
raised,
only question
be
that
but the
for determination in
by
by
superior
the
and
the
court on
the
assessors,
appeal,
is
compensation
amount
the
taken.
of
fоr
land
Atlanta
Georgia
v.
Railway
Terra
Co.
and Electric
Cotta
132 Ga.
Co.,
(64
E.
underlying
principle
537
S.
The
and fundamental
upon
private
property
which the
the
of any
to take
citizen
power
against
by
State
delegated sovereign
his will
the
the
eminent
so
necessary
public
domain
that it
is
is
do
for
purpose;
only way
question
public
in
the
ne
the
which
cessity can be
in
proceeding
raised
a condemnation
under
petition
injunction.
Code, Chapter 36-3,
by
equitable
for
is
Georgia
(86
v.
Railway
Harr old
Central
Co.,
I say Duckworth, Justice, am authorized Chief Head, concur in Justice, this dissent.
RICHARDSON v. THE STATE.
No. 17221. October