151 Ga. 767 | Ga. | 1921
(After stating the foregoing facts.)
While it is not alleged that the counties have actually opened up the road through the plaintiff’s lands on both sides of the river, and have completed the bridge, and that the bridge and road are now in actual use by the public, the petition does allege that the counties have actually taken the right of way and bridge site and have partially completed the road and bridge. The counties, having actually taken plaintiff’s land, are liable to plaintiff for the value thereof. The counties can not retain plaintiff’s land without paying her therefor; and while the counties, as ruled above, are not authorized to condemn land under the Civil Code, § 5206 et seq., nevertheless the plaintiff may maintain the suit for the recovery of the value of the land, or easement therein actually taken and appropriated by the counties for the purposes and in the manner set out in the petition. We do not hold that the counties may not, under proper pleadings, reserve the right to decline payment of the damages finally fixed, and to abandon the road and bridge. In the circumstances of this case, the burden is upon the counties
Judgment affirmed on the main bill of exceptions, and reversed on the cross-bill.