Mitchell County v. Hudspeth

Hill, J. (After stating the foregoing facts.) 1. In the main bill, exception is taken to the overruling of the general demurrer only. It is insisted that the plaintiff was afforded an adequate remedy at law for the enforcement of whatever rights she may'have had under the eminent-domain act of 1894, as embraced in § 5206 et seq. of the Civil Code of 1910. It is further insisted that inasmuch as the condemnation proceedings had already been instituted under the act of 1894, they should continue, and therefore that the present petition should have been dismissed in the court below. Equitable relief in the nature of an injunction is prayed against the condemnation proceedings. There can be no question, under the allegations, that the defendants are- endeavoring to take plaintiff’s land without just and adequate com [772] pensation having first been paid; and unless the plaintiff has an adequate remedy at law, then the general demurrer should have been overruled, so far at least as the petition set out' a cause of action for injunction. We are of the opinion that the eminent-domain act of 1894 as embodied in the Civil Code, § 5206 et seq., does not apply to the condemnation of a road and bridge site on the lands of another. In the case of Hutchinson v. Lowndes County, 131 Ga. 637 (3) (62 S. E. 1048), it was held that “The provisions embraced in the Political Code, §§ 520-525, inclusive [now §§ 640 et seq. of the Civil Code of 1910], were not repealed by the act of 1894, embodied in the Civil Code §§ 4657 et seq. [now §§ 5206 et seq.] or by the act of 1900 (Acts 1900, p. 66).” It seems, therefore, that in condemning land for the establishment of a public road the counties have no right to proceed under section 5206 et seq., but must proceed under section 640 et seq. Section 640 provides that “ On application for any new road, or alteration in an old road, the ordinary shall appoint three road commissioners, residing as near where such road is intended to pass as possible; and if they find it a public utility, they must proceed to mark it out, and make their report under oath to such ordinaries that it was laid out and marked conformably to law.” In the ease of Ainslee v. Morgan County, 151 Ga. 82 (105 S. E. 886), this court held, under the facts of that case, that “ It was error for the court to réfuse to enjoin the county authorities from proceeding to condemn the land; there having been no compliance with § 640 et seq. Civil Code 1910. Warren County v. Todd, 150 Ga. 690 (104 S. E. 906).” In that case Morgan County, through its board of commissioners of roads and revenues served upon Mrs. Ainslee a notice of its purpose to condemn a certain strip of land across her property, to be used for the construction of a public road. Mrs. Ainslee filed' a petition seeking to enjoin the county and the individuals constituting the board of commissioners from proceeding with the condemnation, alleging that it was the intention to use the property (condemnation of which was sought) for the purpose of changing the location of an existing road; that the change was unnecessary; that it would result in the destruction of a number of valuable shade-trees and injury to petitioner’s property for residence purposes; that no offer of compensation had been made to petitioner, etc. The defendants denied all the material allegations of [773] the petition, and averred that they had endeavored to reach an agreement with the plaintiff as to the price to be paid her for the land, but were always informed that she would not sell any land to the county, etc. After hearing evidence both for the plaintiff and the defendant, and after it was agreed in open court that the commissioners had not complied with § • 640 et seq. of the Civil Code, the court refused to grant an injunction, holding that the county authorities were-authorized to proceed under § 5206 et seq. of the Civil Code. The plaintiff excepted to the judgment refusing an injunction, and this court reversed the judgment of the lower court, as set out in the headnote above quoted. We think the principle ruled in the Ainslee case is controlling here, and that the defendants could be enjoined from proceeding to condemn plaintiff’s land under § 5206 et seq. of the Civil Code. We think also that defendants have an available remedy to condemn land for road purposes, under § 640 et seq. of the Civil Code of 1910, if they see fit to avail themselves of it. But the court, clearly having jurisdiction of this case for the purpose of enjoining the illegal condemnation proceedings, can retain jurisdiction also for the purpose of determining the amount of damages sustained by the plaintiff, if any; and in order likewise to avoid a multiplicity of suits, etc. While it is not alleged that the counties have actually opened up the road through the plaintiff’s lands on both sides of the river, and have completed the bridge, and that the bridge and road are now in actual use by the public, the petition does allege that the counties have actually taken the right of way and bridge site and have partially completed the road and bridge. The counties, having actually taken plaintiff’s land, are liable to plaintiff for the value thereof. The counties can not retain plaintiff’s land without paying her therefor; and while the counties, as ruled above, are not authorized to condemn land under the Civil Code, § 5206 et seq., nevertheless the plaintiff may maintain the suit for the recovery of the value of the land, or easement therein actually taken and appropriated by the counties for the purposes and in the manner set out in the petition. We do not hold that the counties may not, under proper pleadings, reserve the right to decline payment of the damages finally fixed, and to abandon the road and bridge. In the circumstances of this case, the burden is upon the counties [774] to have the decree so molded as to permit them to decline to open the road as a public road and to be relieved from the payment of damages for the value of the right of way and bridge site, in the event they shall determine that the damages “ transcend the utility of such road.” Compare Civil Code, § 687. The counties could not relieve themselves of the damages, if any, occasioned by the trespass, by abandoning the road; but nothing here ruled is to be construed as holding that the county authorities may not, by proper pleadings, be left by the decree free to abandon the road and to decline to pay the damages finally assessed for the value of the plaintiff’s land. 2. The court sustained paragraph 5 of the defendants’ special demurrer, which in part was as follows: “ In the 15th paragraph [of the petition] the words e which, considering its value as a bridge site and a ferry site and for other purposes, is and was at the time of such taking of the value of $25,000, and ’ on the ground that (a) said words and allegations are irrelevant, and constitute no element of any cause of action in favor of plaintiffs against these defendants, and (b) they present a claim and measure of damages which is illegal and not allowable under the law, and which plaintiff is not entitled to, and which should not be considered in estimating plaintiff’s damages.” The plaintiff in her cross-bill of exceptions excepted to this ruling of the court. We think that the court erred in sustaining this special demurrer. Section 781 of the Civil Code of 1910 provides that “ In determining the value of land taken for a bridge, its prospective value as a bridge site and its present value as a ferry, if one is in use, may be taken into the calculation.” Under the allegations of the present petition the land taken by the defendants from the plaintiff was for the avowed purpose of building a free bridge, and the approaches thereto, across the Flint river, and for this damage to her property she is entitled to just and adequate compensation; and in order to ascertain what this just and adequate compensation is, it seems to us, while the plaintiff has no exclusive right to establish and maintain a ferry on her land, as decided in Hudspeth v. Hall, 111 Ga. 510 (36 S. E. 770), yet the value of the land taken by the county as a ferry or bridge site, and the approaches thereto, together with all other facts and circumstances calculated to enhance or diminish the value of the property taken or damaged, may be inquired into. [775] In. the ease of Dougherty County v. Tift, 75 Ga. 815, Blandford, Justice, delivering the opinion of the court, said: “If Tift was the owner of the land through which this stream ran, on both sides, then, under the act of 1850, he had the right to erect a bridge over the same, and charge toll for crossing thereon; and whether the bridge be public or private, it belonged to Tift, and when the County of Dougherty takes his land and erects another bridge, which causes damage to Tift’s property, he is entitled to just compensation therefor. Art. 1, sec. 3, par. 1, Constitution of Georgia; Code, section 5024. Whether the same is a public or a private bridge, the question in such case is, what damage has the party sustained; and to ascertain this, the cost of erection, the income derived from the bridge, may be looked to and considered by the jury, together with all other facts .and circumstances calculated to enhance or diminish the value of the propeitv taken or damaged.” The Civil Code, § 688 provides: “In estimatin'* the-value of land when taken for public uses, it is not restricted to its agricultural or prrdiutive qua!"ties, but inquiiy may be made as to all other legitimate purposes to which the propeity could be appropriated.” We are of the opinion that the plaintiff may show the value of her land for any legitimate purpose to which the land could be appropriated, including its value as a bridge site, and as a ferry, if any; and that the court therefore erred in sustaining the above portion of paragraph 5 of the defendants’ special demurrer; but in so far as such demurrer above dealt with was directed at paragraph 16 and a part of paragraph 17 of the petition, the demuirer was properly sustained, because in the two paragraphs last mentioned there are elements of damages set forth as a basis of plaintiff’s claim which are not allowable under the law, as will be seen from what has been said above while dealing with the demurrer -to paragraph 15. Judgment affirmed on the main bill of exceptions, and reversed on the cross-bill. All the Justices concur.