139 Ga. 676 | Ga. | 1913
(After stating the foregoing facts.)
In the case before us the defendant in error made a prima facie showing that everything had been done against which injunction was prayed. But the counter-showing tended to prove that everything against which injunction was prayed had not been fully completed. As to the attempted assessment since the signing of the bill of exceptions, the evidence seriously attacks its validity, both because of want of any statutory authority therefor and also because of the manner in which it was sought to be made. If it was invalid, this might furnish ground for an additional prayer for injunction, but, in view of the statements and counter-statements, it would hardly be ground for dismissing the writ of error. Under the briefs and affidavits, the plaintiffs will not be compelled, by dismissal of their writ of error, to waive the contention that the attempted assessment was void, and submit to it as being valid by appealing from it or receiving the amount awarded. This case does not fall
The decision in the case of Nolan v. Central Georgia Power Co., 134 Ga. 201 (67 S. E. 656), does not conflict with this ruling. The question decided in that case, in the second headnote, was whether the power to condemn land to “flow-back water,” conferred by the act of 1897 (Civil Code, § 5240 et seq.), included the right to condemn lands which might contain a water-power not in actual
Judgment reversed, with direction.