83 Ga. 257 | Ga. | 1889
This company was chartered under the general railroad law, the act of 1881, found in the code, §1689(a) ,et seq., its route being located in part upon lands occupied and claimed by Oliver. Before any entry was made upon said lands, the parties proceeded to have the value and the damages assessed by assessors, as provided in section 1689(1). The assessors fixed the compensation at $225, and both parties appealed from the assessment to the superior court, the company giving bond as required by that section. "When the work of grading the road approached very near to Oliver’s premises, he gave notice not to enter upon the same. The president of the company announced his determination to enter and continue the work as soon as the place was reached in the progress of grading the line. Thereupon Oliver brought his petition for au injunction, praying-that an entry upon the land for the purpose of grading the railroad, or for any other purpose, might be restrained -until the damage to the same should be
1. The right of the company to enter and prosecute the work of construction on or through the plaintiff’s land, is rested upon thé general railroad law, code, §1689(1), which declares that the entering of an appeal and the proceedings thereon shall not hinder or in any way delay the work, or the progress thereof, but thsame may proceed, without let or hindrance, from the time said condemnation proceedings are begun. The case of Chambers v. Cincinnati & Georgia Railroad, 69 Ga. 320, is a virtual adjudication that this provision of the law is incompatible with the constitution, if it is to be construed as attempting to confer the right of proceeding with the work pending an appeal taken by the company, without first complying with the constitutional requirement of paying just and adequate compensation. The method for assessing value and damages prescribed by the charter of the Cincinnati & Georgia Railroad, section 11, (acts 1880-1, pp. 254-5-6,)
Nothing can be plainer or more explicit than the terms of our constitution^ “ Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Code, §5024. Adjudications in other States upon cognate terms, such as first or previously made, deposited, etc.,, are numerous. Browning v. R. R. Co., 3 Gr. Ch. R. 47; Mettler v. R. R. Co., 25 N. J. Eq. 214; Redman v. R. R. Co., 33 N. J. Eq. 165 ; Eidemiller v. Wyandotte, 2 Dill. 376: Walther v. Warner, 25 Mo. 277; Ring v. M. R. Bridge Co., 57 Mo. 496; Henry v. R. R. Co., 10 Iowa, 540; Cox v. R. R. Co., 48 Ind. 178; Mitchell v. R. R. Co., 68 Ill. 286; St. Joseph, etc. Co. v. Callender, 13 Kan. 496 ; Ray v. R. R. Co., 4 Neb. 439; Bohlman v. R. R. Co., 30 Wisc. 105; Dimick v. Brodhead, 75 Pa. 464; Covington, etc. R. R. Co. v. Piel, 8 S. W. Rep. 449 ; Asher v. R. R. Co., Ib. 854.
2. The method -of ascertaining what is just and adequate compensation, is subject, within certain limits, to legislative discretion. To such proceedings in the exercise of the power of eminent domain the constitutional guaranty of trial by jury does not extend, there being in our constitution no express provision so extending it. Mills Em. Dom. §91, and cases cited; Proffatt Jury Tr. §104; Cooly Const. Dim. (5 ed.), 697 ; Lewis Em. Dom. §311, and cases cited. The case of S. W. R. R. Co. v. S. & A. Telegraph Co., 46 Ga. 43, is no direct adjudication upon this point, there being another ground upon which the decision could he and was chiefly rested. The Supreme Court of Kansas, in C. B. U. P. R. R. Co. v. A., T. & S. F. R. R. Co., 28 Kan. 453, held that it was optional with the legislature to make assessment by commissioners final, or to allow an appeal therefrom to a jury; and a statute of that State was sustained which provided that on compliance by the corporation with the constitutional requirement touching payment or deposit of the compensation money as fixed by assessment of the statutory commissioners, the corporation might enter and prosecute its work pending an appeal from the assessment, the appeal in the case being taken by the land-owner. Payment or deposit of the compensation assessed in the first in
3. The legislative intent as expressed in our statute, that is in the 12th section of the act of 1881, (code, §1689(1), supra,) is somewhat doubtful, but the doubt is to be solved in the light of the constitution, and in favor of the constitutionality of so much of the legislative scheme as can be harmonized with the organic law. The section declares “ it shall be lawful for said corporation to construct its railroad over any lands belonging to other persons, . . upon paying or tendering to the owner thereof . . . just and reasonable compensation for the right of way, which compensation, when not otherwise agreed upon, shall be assessed and determined in the following manner.” It then goes on to provide that the corporation shall choose one assessor, the owner another, and these two a third, the choice for the owner, in case of his refusal, to be made by the ordinary. The three assessors are to be sworn, hear evidence, and then by the concurrence of a majority assess the value and the damages. Their award in writing is to be filed in the office of the clerk of the superior court, and be by him recorded, after which it has the force and effect of a judgment or decree of the superior court. Either party dissatisfied with the award “ shall have the right, by giving written notice to the other party, within ten days from the time said award is filed as aforesaid in the clerk’s office, to enter an appeal in writing from said award to the superior court, . and at the next term of said court, unless continued for legal cause, it shall be the duty of the judge presid
The doubt which arises is, whether in ease of appeal, the legislature intended the corporation to pay or tender the sum found due by the award of the assessors, as a condition precedent to the right of entering for exclusive occupation, or, which is the same thing, for beginning the active work of construction. We think such 'must have been the intent, first, for the reason that a contrary intent would be violative of the constitution ; and secondly, because the condition on which tbe right to construct is expressly put in the" previous part of the section, is tender or payment of just and reasonable compensation. Prima facie the measure of this compensation is the award of the assessors provided for. That amount being paid or tendered,, the appeal and the proceedings thereon are not to delay the work or its progress, but the same may proceed with
Our minds have reached a fixed conclusion that the true and only construction of the section we have discussed is, that with or without appeal, there must be payment or tender, upon the basis of the award of the .assessors, before the corporation can lawfully begin the work of construction against the will of the land-owner. And such payment or tender may be made without prejudice to the appeal, or the right of appeal, of either party. I & C. R. R. Co. v. Brower, 12 Ind. 374; Chicago, etc. R. R. Co. v. Phelps (Ill.), 17 N. E. Rep. 769. ("We cite the latter case on this point without approving its doctrine on the nature of an entry for construction or use.) The land-owner, no matter which party appeals, may accept the tender at the peril of having to refund in case the award is reduced on the trial of the appeal, and the corporation may pay, enter, and go to work at the peril of having its provisional title defeated as by a condition subsequent, if it should fail to pay any additional amount recovered against it by final judgment on the appeal. In this way the statutory
4. It was competent for the legislature, as it has done, to declare tender a substitute for actual payment where the tender is declined. If the land-owner will not receive the money awarded him by the assessors, he has no one to blame but himself. Cremor v. Nelson, 23 Cal. 464; Browning v. R. R. Co., 3 Green Ch. R. 47; Mettler v. R. R. Co., 25 N. J. Eq. 214; Redmond v. R. R. Co., 33 Ib. 165; Mercer, etc. R. R. Co. v. R. R. Co., 26 Ib. 464; Johnson v. R. R. Co., 17 At. Rep. 574. According to some of these cases, the time of tender, that is, whether before or after the appeal is entered, is material; but we think, under our statute, the time is immaterial, for though the award may be considered as vacated by the appeal for most purposes, the statute restricts the tender to no particular time, and the amount of the award itself is no less certain after appeal than before, nor is its force as primd fade evidence of value and damages impaired by the appeal. Of course, should tender be delayed until after the appeal is tried, the amount requisite to tender is to be measured then, not by the award, but by the verdict or the judgment rendered in the appeal proceedings.
5. In the present case, the bill was silent as to tender, and the answer does not disclose the date of it, nor say whether it was before or after one or both appeals were taken, but only that it was before the company went to work upon the land. Neither is the tender repeated or made continuous by the answer. The pleading is altogether too loose and incomplete, but no point, so far as appears, was made before the judge on these minor matters, nor was the fact of actual tender denied. The