1. It was not erroneous to refuse to grant an injunction at the instance of the State Highway Board, to prevent the sale of a parcel of land on which a State highway is located, the sale being advertised by the marshal of the City of Baxley under an execution issued under the Baxley street-improvement act approved July 30, 1927 (Ga. Laws, 1927, pp. 902-916), there being no offer on the part of the highway board to compensate the holders of bonds issued under such act, for damages sustained by them by injuries occasioned by incorporating such property into a State highway.
2. In hearings on interlocutory injunction, the rules of evidence are not in all respects as rigidly enforced as on final trials. In such cases the admission
of some secondary, hearsay, or opinion evidence will not necessarily require a reversal.
No. 13264. MAY 17, 1940.
The exception, among others, is to the refusal to grant an interlocutory injunction. The case made by the pleadings and the evidence is this: On November 7, 1939, Wilson Baxley as marshal of the City of Baxley levied a certain paving fi. fa., issued that day by the clerk of the city council, on property described as lot No. 3, block 18, on the east side of Main Street in said city, and was proceeding to advertise the lot for sale at public outcry. Located on said lot is a State highway sixty feet wide, with a measurement of approximately 210.5 lineal feet; it being a part of what is known as Highway No. 27. The State Highway Board filed its petition praying that the defendants be restrained and enjoined from proceeding with the sale of the property. The marshal and the City of Baxley were the defendants. The County of Appling was afterwards made a party plaintiff. H. W. Sanford, a holder of Baxley paving bonds in the amount of $3,000, was allowed to intervene. The paving fi. fa. was issued under the Baxley street-improvement act approved July 30, 1927 (Ga. L. 1927, pp. 902-916). On March 8, 1932, the mayor and aldermen of the city passed a resolution reciting that the State Highway Board and the County of Appling desired to construct a road between Baxley and Jesup, to extend within the corporate limits of the City of Baxley. By the terms of this resolution the city undertook to guarantee to the State Highway Department and the County of Appling any and all rights of way that may, in the opinion of the State Highway Department, be necessary to the proper construction of the above-named project and according to survey as made by engineers of the State Highway Department, within the corporate limits of the city, and agreed to defend any and all suits, if any should arise, at the entire expense of the city, and to pay from its funds any and all awards and judgments that might be made or had under or as a result of such suits; to save harmless the State Highway Department and Appling County from any and all claims for damages which might arise as a result of the appropriation of said sixty-foot right of way within the corporate limits of the city; agreed not to allow any new structure to be built within the limits of the right of way, and that all
existing structures there would be removed before the expiration of five years, without cost to the State. On May 3, 1932, the commissioners of roads and revenues of Appling County passed a resolution reciting that they guaranteed to the State Highway Department any and all rights of way necessary to the construction of the project, including drainage, and agreed to defend any and all suits, if any should arise, involving direct or consequential damages as a result of the appropriation of said right of way by the county and the State Highway Department, or as a result of the construction on said right of way, drainage, change of grade, change of location, or any cause whatsoever, and to pay from county funds all damages or awards that may be made as a result of such suits; also agreed to save harmless the State Highway Department from any and all damages whatsoever that may arise before beginning or during construction of the project, or at any time in the future after its completion.
On June 2, 1931, B. Hall Wilson, through his guardian, under an order granted by the judge of the superior court authorizing the property to be sold at private sale for reinvestment, conveyed the same to Appling County. On May 9, 1932, Appling County conveyed by deed to the State Highway Board of Georgia the right of way through the property; which right of way is now occupied by said board as a State highway. The county paid for the property $8500, and moved a house located thereon. The highway through this lot left a narrow strip on two sides of it, which the county later sold, one for $900, the other for $850. The entire lot had a reasonable value of from five to ten thousand dollars. The bill of exceptions further recites that the sixty-foot wide strip of property, immediately after the execution and delivery of the deed from the county to the State Highway Board, became a part of State Highway No. 27, and was paved, and continuously thereafter has been a part of the State highway system of Georgia, "at which time said State Highway Board had knowledge of the paving assessment against said county." The fi. fa. above referred to recites that there remain due and unpaid instalments for the years 1931 to 1938, inclusive, amounting to $1031.32, including interest to September 1, 1939. The petition prayed for injunction, and general relief. The response of Appling County prayed that the City of Baxley and all others be enjoined from selling or proceeding
to collect said paving claim against any of the owners of said land. The City of Baxley and its marshal in their answer prayed that the injunction be refused. Intervenor Sanford prayed as follows: "That this intervention be allowed; and further prays: first, that the injunction prayed for be denied; second, that said County of Appling and said State Highway Board be adjudged to be liable for the payment of said paving assessment; third, that judgment be rendered against said County of Appling and said State Highway Board, for the use and benefit of petitioner and other like situated bondholders, for the amount of said paving assessment." The State Highway Board and Appling County excepted to the refusal of an injunction. Error is also assigned on the admission of the following evidence of R. M. Dunn: "The county agreed to pay the paving assessment; however the county had a lot of paving assessments which it had to pay on account of paving around the courthouse square, and was not in position at the time to take up this paving, and it was just allowed to stand. It has always been understood that the county was to pay and would when it could pay this paving." The objection to its admission was on the ground that no such agreement or understanding would be binding upon the county unless it was in writing and made with the proper county officials authorized to act for the county at the time the property was bought. The court overruled the objection and admitted the testimony as showing notice to the county of the outstanding paving assessment.
1. The State Highway Board contends that it is entitled to injunction under the principles underlying the decisions of this court in the following cases: Griffin v.Augusta Knoxville Railroad, 70 Ga. 164; Charleston Western Carolina Ry. Co. v. Hughes, 105 Ga. 1 (30 S.E. 972, 70 Am. St. Rep. 17); Atlanta, Knoxville Northern Ry. Co. v.Barker, 105 Ga. 534 (31 S.E. 452); Georgia Power Co. v.Kelly, 182 Ga. 33 (184 S.E. 861). The authorities on which these decisions rest are to the effect that an owner will not be allowed, by pursuing a particular remedy, either to recover or have sold under legal process a segment of a railroad or other means of transportation, or an electric power
company, or any other concern whose property is devoted to a great public use, when the disruption of a portion would interfere with the service as a whole, in at least two instances: (a) If it be shown that the original entry was with the consent of the owner or creditor; (b) or that the entry, although without his consent, was so long acquiesced in that to allow the company to be ejected would either dismember the property of the company, or essentially interfere with its ability to discharge the public duties incumbent upon it. In Farmers Loan Trust Co. v.Candler, 87 Ga. 241 (13 S.E. 560) it was pertinently observed: "A railroad with its depots, bridges, and other appurtenances, is no less an entirety than a dwelling-house with its kitchen, its chimneys and its doorsteps; and yet no one has ever supposed that a mechanic's lien could be enforced against the doorsteps or chimneys of a dwelling-house, or that they could be sold and removed, to the utter destruction of the whole property." In Charleston Western Carolina Ry. Co. v.Hughes, supra, it was aptly said: "Controversies in reference to the possession of land, where the rights of individuals only are involved, are purely matters of private concern. Controversies in which a corporation charged with the duties incumbent upon carriers of passengers, freight, and mails, in which an effort is made by private individuals or others to take away from such corporation a part of the property in its possession, which is absolutely essential to its complete performance of the public duties required of it, become matters of more than private concern, and in which the public is deeply and seriously interested. For this reason it has become settled law that the harsh remedies which would be allowed to one individual against another in reference to the possession of land will not be allowed to one who is seeking to recover such property from a railroad company, when exact justice can be done to such owner by giving him remedies which are less severe in their nature, and by which he would secure substantially the same rights, thereby saving to the public the right to require a performance of the public duties incumbent upon the corporation whose property is the subject-matter of the controversy." Many authorities are reviewed in the case last cited; and others cited in Atlanta, Knoxville Northern Ry. Co. v. Barker, supra, are to the effect that an owner who remains inactive and permits a railroad to go on and expend large sums on the work will be
regarded as having acquiesced therein. Later authorities were cited, and the principle again was applied, in Georgia PowerCo. v. Kelly, supra.
But in the instant case, although the State Highway Board seeks the aid of a court of equity, it does not in its petition offer to do equity. Code, § 37-104. It can not, as an instrument of government and as against the owner, take private property for public uses without adequate compensation being paid therefor. Neither can it in good conscience, as to one who holds a valid lien against property acquired by it for road purposes, deny redress for the injury done such lienholder, when, by incorporating such property into a State highway, it puts it beyond the reach of process based on such lien. Since it does not appear that the State Highway Board has made any effort to adjust the equity owing to the lienholder, to wit the holder of bonds issued under the Baxley street-improvement act, approved July 30, 1927 (Ga. Laws 1927, pp. 902-916), it is not entitled to injunction, and the judge was right in denying it. Under the principles above stated, however, notwithstanding the property may be sold by the marshal, it will not be too late for the State Highway Board under proper pleadings to prevent the dismemberment of that portion of the highway here involved; provided compensation is paid to the holders of the paving bonds, to cover such an amount as they may have been damaged by reason of the appropriation for highway purposes of a portion of the property on which they hold valid liens.
2. Whether that portion of the testimony of Dunn objected to was properly or improperly admitted can not affect the judgment in the present writ of error; and hence no ruling will be made thereon. In hearings on interlocutory injunctions, the rules of evidence are not in all respects as rigidly enforced as on final trials. It has been held that the admission of some secondary evidence, or the admission of some hearsay or opinion evidence, will not necessarily require a reversal. Southern Cotton-OilCo. v. Overby, 136 Ga. 69 (70 S.E. 664).
Judgment affirmed. All the Justices concur.