State Highway Department v. Pierce

46 Ga. App. 52 | Ga. Ct. App. | 1932

Broyles, O. J.

1. While the present State Highway Department has the authority, under the provisions of the act of 1919 (Ga. L. 1919, p. 242), to condemn property necessary for rights of way for any road embraced in the system of State-aid roads, where the county in which the property lies fails to furnish such right of way, and while the county is liable for the cost of the right of way when condemned by the State Highway Department (Lee County v. Smithville, 154 Ga. 550, 559 (115 S. E. 107), there is no provision in the act of 1919, nor in any other act of the General Assembly, which authorizes the State Highway Department, when it brings a condemnation proceeding against the owner of certain property, where the county has failed to furnish the right of way, to make the county a codefendant in the proceeding, and to ask the court to condemn, for the use of said department, the property, without any liability on its part to pay for the same, and to order the county to pay the owner of the property whatever damages may be awarded him. A condemnation proceeding is statutory and in derogation of the common law, and one who institutes such a proceeding has no authority to vary or add to the provisions of the statute. He has no right save those expressly granted by the statute.

Decided November 17, 1932. G. L. Worthy, for plaintiff. E. B. King, A. E. Gray, for defendant.

2. Applying the foregoing principles of law to the pleadings in the instant case, the petition was subject to the demurrer interposed, and was properly dismissed.

Judgment affivrmed.

Hooper, J., concurs. MacIntyre, J., not presiding.