112 Ga. 941 | Ga. | 1901
The Postal Telegraph-Cable Company served the Savannah, Florida and Western Railway Company, in the county of Chatham, where the railway’s main and principal office is located, with a notice of the intention of the telegraph company to condemn certain portions of the right of way of the railway company from Albany to Thomasville and from Thomasville to Yaldosta, through the comities of Dougherty, Mitchell, Thomas, Brooks, and Lowndes, for the purpose of constructing, maintaining, and operating a telegraph line thereon. The railway company sought to enjoin such
Counsel for the railway company rely upon the decision of this ' court in Southwestern Railroad Co. v. Atlantic Telegraph Co., 46 Ga. 53; but Chief Justice Bleckley, in the case from which we have just quoted, correctly says that the decision in that case “is no direct adjudication on this point, there being another ground upon which the decision could be and was chiefly rested.” It is well settled that unless the right of appeal is guaranteed by the constitution, the legislature .may grant or withhold it, or impose such conditions as it shall see -fit. 2 Lewis, Em. Dom. § 537, p. 1197; Cooley’s Const. Iim. (5th ed.) 697; Proffatt, Jur. Tr. § 104; Band. Em. Dom. §316; Mills, Em. Dom. §91; and the numerous cases cited by these authors. In' the absence of constitutional provisions on the subject, there can be no appeal unless granted by statute. Lewis, Em. Dom. § 535, p. 1191, and cases cited. Unless there are express constitutional provisions upon the subject, the authorities .almost uniformly hold that it is not a constitutional right to have the compensation to be paid for property condemned and taken for public use ascertained by a common-law jury. 2 Lew. Em. Dom. § 311, and the great number of cases cited in note 26.
In Mobile & Ohio R. R. Co. v. Postal Telegraph-Cable Co., 128 Ala. 21, it was held: “A telegraph company, in the exercise of the right of eminent domain given to it by the laws of the State, can condemn a right of way within that part of the right of way of a railroad company not in actual use, when the proposed line of telegraph will he so constructed as to produce no material interference with the railroad company’s free exercise of its franchise, or with the actual operation of.the road.” In St. Louis & Cairo R. R. Co. v. Postal Telegraph-Cable Co., 173 Ill. 508, the telegraph company’s petition to condemn the right of way of the railroad company stated that the poles would not be less than twenty-five feet long, one foot in diameter at the hase, and be set in the ground at a depth of not less than five feet; that upon the poles suitable arms, six feet in length, would he fastened near the top, on which would he strung wires of suitable material; that the poles would be placed one hundred and seventy-five feet apart from each other and at a distance of not less than twenty-five feet from the outer edge of the railroad track, or at such point as might be agreed upon by the telegraph company and the railroad company. On page 519 of the report, the court, speaking through McGruder, J., after stating: “It is further urged that the petition fails to show that the proposed telegraph line will not incommode the public use of the railroad,” said: “ The location of the line, as indicated in the petition, shows that the public use of the railroad will noti he seriously incommoded.” It will be seen that the facts there in reference to the proposed, location of the telegraph line, relatively to the railroad company’s track, the size
Judgment affirmed.