87 Ga. 355 | Ga. | 1891
This bill of exceptions recites that during the April term of the superior court of Bibb county, there came on to be heard a certain cause wherein A. B. Small, trustee, Was complainant, and the Georgia Southern and Florida Railroad Company was defendant, the same being an action to enjoin the said railroad from the further prosecution of condemnation proceedings to condemn certain lands in the city of Macon belonging to said complainant, which condemnation proceedings had been instituted under the charter of said railroad company; and also the case of the Georgia Southern and Florida Railroad Company v. A. B. Small, trustee, said last mentioned case being a statutory proceeding to condemn the property of said Small, trustee, for the use of said railroad company, and then and there pending upon appeal from the verdict of the jury in said condemnation proceedings; both of which cases were by the order of the court consolidated and tried together, and both parties having announced ready in both cases, a jury was empanelled to try the same. The bill of exceptions then goes on to recite that pending the trial the court allowed certain witnesses to testify as to the value of the property at the time of the trial. This was objected to upon the ground that the testimony sought to be elicited was illegal, for the reason that the value of the property to be submitted to the jury was the value at the time of the condemnation proceedings in July of
The judge charged the jury as follows: “The sole issue for the jury, on this branch of the ease, is to determine the present value of the property located as it is in the city of Macon at the present time, and for that purpose may be used all the testimony that throws any light upon that question of the present value of the property.” To this charge the company also' excepted and assigned the same as error.
The constitution of this State declares (Code, §5024), that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” It appears from the above recital of facts set out in the bill of exceptions, that the railroad company had, under its charter, in July, 1888, instituted condemnation proceedings for the purpose of taking this land from Small for its use. A jury had been summoned by the sheriff in accordance with the provisions of the charter, and they had assessed the value of the land. Small, being dissatisfied with the verdict, appealed to the superior court, and at the same time filed a bill seeking to enjoin the railroad company from condemning the land. The only question made by this record is, whether on the trial of the appeal in the superior court, the value to be assessed by the jury should be the value of the land at the time of the condemnation proceedings in July, 1888, or its value at the time of the trial of the appeal, May, 1890. This question depends upon what time the taking is complete so as to authorize the railroad company to take possession of the land. Under the clause of the constitution above quoted, the land-owner must first be paid, before the
Judgment affirmed.