Nashville, Chattanooga & St. Louis Railway v. Western Union Telegraph Co.

Hill, J. (After stating the foregoing facts.) The first contention raised by the plaintiff in error for decision is, that there is no law in Georgia for amending a notice given to an owner of land as a prerequisite of condemning the land; and, if there is such law, that the amendment proposed in this'case was not sufficient and could not be allowed. Sections 5206 et seq. of the Civil Code of 1910 provide how private property can be condemned for public purposes by corporations. It is provided that if the corporation can not by contract procure the land necessary for public purposes, it shall be lawful for the corporation to take or damage the property upon paying or tendering to the owner just and adequate compensation for the land. § 5607. If the parties can not agree upon the compensation to be paid, then it is provided how the compensation shall be assessed and determined. § 5608. And the next step looking to condemnation is a provision for a notice to the owner of the land. It is provided in section 5209 that the corporation or person seeking to condemn property for public purposes shall serve a notice upon the owner of the property. “ 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.” § 5218; see also § 5236. It will be seen [529] that there is no provision in this section for an amendment, before the assessors, to the notice to be given to the owner of the land'. The defendant in error relies on the case of Savannah &c. Ry. Co. v. Postal Tel. Co., 115 Ga. 554 (42 S. E. 1), as authority for the right to amend a notice to be given the owner of land in a condemnation proceeding. That case was decided by five Justices. It was held that “The amendment to the original notice was properly allowed, and inured to the benefit of the railway company.” The original record in that case shows that the notice was amended at the hearing before the assessors. In the body of the opinion it was said (pp. 56Ó-561): “The original notice of condemnation served by the telegraph company on the railroad company stated that the proposed line would be constructed ‘with poles about twenty-five feet in length, and one foot in diameter at the base, and planted at a depth of five feet in the ground and about one hundred and sixty-seven feet apart on said right of way, making about thirty-one poles to the mile; and said poles will be situated about thirty feet from the center of the railroad track, which is located about the center of your right of way, being on an average of one hundred and fifty feet in width. . . Said poles will nowhere be planted upon any of the embankments of said railway company, nor will said wires be attached or fastened to any of the bridges or trestle work of said railway company.-’ We fail to see how, under the circumstances, a more definite description could be given as to the location of the proposed line. The railroad company, however, demurred to the notice; and the telegraph company amended by inserting, at a suitable point in the description of the proposed location of its line, the words: ‘or at such other distance from the track as may be preferred and designated by your company, not nearer the outer edge of the right of way than six feet.’ It needs no argument to show that the amendment, offering as it did to allow the railroad company to select the line which should be followed, even had it been indefinite, was not one of which the railroad company can justly complain. The amendment was germane and properly allowed.” No authority was cited by the learned judge who delivered that opinion as supporting the ruling there made. And he evidently did not attach much importance to the amendment; for it was held in the headnote, that “The description of the property sought to be condemned, as made in the original notice, was [530] not open to the objection that it was vague and indefinite,” and that the amendment, which had relation to the description, “inured to the benefit of the railway company.” In the absence of some express authority authorizing an amendment of a notice to the owner of land sought to be condemned, we can not agree to the soundness of the proposition there announced. We are aware of the liberality of the law of amendments in this State; but, so far as we find, this rule as to amendments relates to some proceedings before duly authorized courts or tribunals which have power to pass upon the legality of the amendment and whether it is germane to the issue on trial. It is said in 2 Lewis on Eminent Domain, 994, § 561, that “The question of the right or power to amend the petition depends on various considerations: The nature of the tribunal before which the proceeding is pending, the statutes applicable to the particular case, the nature of the amendments proposed to be made, and the stage of the proceeding at which the amendment is moved.” Defendant in error cites a number of outside authorities holding that proceedings to condemn land for public purposes can be amended; but in most, if not all, of the cases cited either the proceedings were begun by petition in some court, or express authority to amend was given by statute. It may be remarked that, in a case closely analogous to the one under consideration as to the method of procedure, it was held that an amendment was not allowable. Perry v. Inhabitants of Sherbourne, 11 Cush. 388. In such cases as those referred to above, it may be that the amendment is allowable; but in the instant case the proceeding was not begun in a court, but before assessors, who have no power to rule on the allowance of amendments; nor is express authority conferred by statute on the applicant to amend the notice required to be given the owner whose land is sought to be condemned. It is true that the temporary order of the judge, restraining the defendant from proceeding with the condemnation, granted “permission to defendant to amend its original condemnation notice served on plaintiff July 10, 1912, so as to describe such other location selected by it; provided said location so selected, and by amendment so sought to be condemned, shall be such location on the right of way of plaintiff as will not interfere with the ordinary use of said right of way of plaintiff for railroad purposes, nor interfere with the telegraph [531] line for railroad purposes constructed or to be constructed by plaintiff on tbe location heretofore selected by it.” But if there is no authority of law for allowing an amendment to a notice in such proceedings, the order of the judge can not confer such authority. Pending the original notice to the railroad company to condemn part of its right of way by the telegraph company, the railroad company filed a petition against the telegraph company to enjoin the condemnation proceeding. A temporary restraining order was granted, pending which this court decided, in the case of the Western & Atlantic R. Co. v. Western Union Tel. Co., supra, that the railroad company in that case had a preferential selection of the route, and that the telegraph company would be enjoined from condemning a route which had been selected by'the railroad company for its telegraph line, when such line had been selected in good faith by the railroad company. That ruling is applicable to the instant case, as was recognized by the defendant in error. Subsequently to the rendition of the above decision, the telegraph company amended its original notice to the railroad company, as set out in the foregoing statement of facts. Under the above-mentioned ruling the condemnor could not condemn under the original notice; and as there is no provision of law, after a notice has been given and before any award, for amending the notice, the court erred in not granting the injunction prayed for. This being so, it is unnecessary to decide the other questions raised by the bill of exceptions, as to whether the amendment contained a sufficiently accurate description of the land sought to be condemned, or whether it failed to fix the time and place for a hearing of the condemnation proceedings. Judgment reversed. All the Justices concur.