20 S.E.2d 21 | Ga. | 1942
Lead Opinion
"Where the State Highway Board takes rock from land not on a highway, and uses it in the construction of a road, the owner's cause of action does not originate on a highway under the Code, § 95-1710, and his remedy is an action against the board in the county of the residence of a member at the time the suit is brought."
We think that the ruling of the Court of Appeals is sound, and that it has properly distinguished the cases of this court, such as Taylor v. Richmond County,
Judgment affirmed. All the Justices concur, except
Dissenting Opinion
In our opinion the point at issue is not to be determined by a reference alone to the Code, § 95-1710, but by ascertaining from the entire legislation on this subject the legislative intent with reference thereto; and so interpreting it, the trial court was correct in sustaining the demurrer of the State Highway Board. "Construing together the original act and the amendments, the *720
liability of the county referred to is primary, and that of the State Highway Board is ultimate. As relates to damaging private property for public uses, the liabilities are joint, and the remedy against both is suit against the county in the local courts for the whole damage, with the right of the county to vouch the State Highway Board into court in the manner expressed in the statute, by giving notice as therein provided; whereupon the State Highway Board is required to defend the action and be liable for all damages recovered against the county." Taylor v.Richmond County,