City of Elberton v. Adams

Beck, J. (After stating the facts.) We are of the opinion that the court did not err in granting the interlocutory injunction. Certainly there was no abuse of discretion, under the evidence introduced to support the allegations of the petition. The Civil Code, §4660, provides that “The corporation or person seeking to condemn property for public purposes shall serve a notice upon the owner of the property and upon the owner of any remainder, reversion, mortgage, lease, security-deed, or other interest therein,” and it is further provided, in §4667, that “Unless service is acknowledged or waived, a copy of such notice shall be served by a sheriff or deputy, personally or by leaving a copy at the residence of the owner, or mailed in case of non-residents, at least fifteen days before the day fixed for assessing the damages;” and section 4669 prescribes the contents and direction of the notice, in the following language, “All notices shall be directed to the owner or owners, and shall describe the property or franchise and the amount of interest therein sought to be condemned; fix the time when the hearing will be had on the premises; give the name of the assessor selected by said corporation, and request the owner, trustee, or representative, as the case may be, to select an assessor.” Section 4670 provides for the appointment of an assessor by the ordinary, in case the owner of the property sought to be condemned fails to make a selection. The law does not definitely fix time within the limits of which the owner must make the selection, and, without now passing [504] upon the question as to whether he would have the full period of fifteen days (that-being the number of days which must precede the day fixed for assessing the damages after the service of the prescribed notice), we hold that the owner of the land to be condemned would be entitled to a reasonable time within which to name the assessor chosen by him. This is a substantial right of which he should not be deprived, unless he refuses or neglects, until after the expiration of a reasonable time, to exercise the right. The owner in the present case was served with the notice provided by law, on the 17th day of June, and the time fixed for assessing damage was the 6th day of July following. Seven days after the service he named the assessor chosen by him, and gave clue notice to the City of Elberton. In the meantime, under the provision of §4670, the city had notified the ordinary that the owner had failed to select an assessor, and that official proceeded to name one for the owner, and the two assessors, — that is, the one selected by the city and the one named by the ordinary, — • were proceeding “to name a third assessor to complete the board of assessors and to appraise and value petitioner’s property.” That being true, the court properly, in the exercise of the discretion vested in it, granted the interlocutory injunction. We can not hold, as a matter of law, that the petitioner lost his right to select an assessor merely because, before the service of the notice, he had expressed an intention to “have nothing to do with the proceedings.” However fixed in that intention and however emphatically and forcibly he may have expressed it, he had a right' to change it after the legal notice was duly served, and to exercise his right of choosing an assessor, provided he did so within the time allowed by law. Judgment affirmed. All the Justices concur, except Holden, J., disqualified.