Opinion
13110.
FEBRUARY 15, 1940.
Petition for injunction. Before Judge Grice. Tattnall superior court. September 2, 1939.
P. M. Anderson, for plaintiff.
M. W. Eason and John P. Rabun, for defendant.
1. In section 51 of the charter of the City of Collins (Ga. L. 1905, pp. 740, 754), it is declared that the city "shall have full power and authority to condemn property for the purpose of opening . . new streets . . and whenever the city council shall desire to exercise the power granted in this section, it may be done . . in the manner provided in sections 4657 and 4686 of volume 2 of the Code of 1895 [Code of 1933, §§ 36-301, 36-502] and act amendatory thereof." These sections of the Code taken alone do not provide a method. In these circumstances the general law of the State (Code, § 36-301 et seq.) prescribing the procedure and the method of ascertaining the damages becomes by implication a part of the municipal charter. Stowe v. Newborn, 127 Ga. 421 (3) ( 56 S.E. 516). Therefore the City of Collins has charter authority for exercise of the power of eminent domain for the purpose of opening a street through private property.
2. Preliminary to the exercise of such power for the purpose of opening a public street it is incumbent upon the city to serve a notice upon the owner of the property sought to be condemned, Code, § 36-304, which "shall describe the property," Code, § 36-313, with the same definiteness as is required in a deed of conveyance of land. Central Georgia Power Co. v. Maddox, 135 Ga. 246, 247 ( 69 S.E. 109).
3. In the instant case the preliminary notice stated the land intended to be condemned as "One and twelve-thousandths (1.012) acres, . . bounded north by lands of . . W. H. Yeomans and other lands of the Glidden Company [condemnee], east by a street, south by other lands of the Glidden Company, and west by Jones Street; said lands being more particularly described by reference to the fact that it is all that portion of land belonging to the Glidden Company which lies within the right of way of lines as shown on the plans of post-road project number 46, which plans are on file in the office of the State Highway Board of Georgia, Atlanta, Georgia. Said right of way is 50 feet in width and begins at station 9 plus 38, which is the boundary line between lands of the Glidden Company and Jones Street and extends to station 20 plus 00 which is the boundary line between lands of the Glidden Company and an unnamed city street, — an approximate length of 1062 lineal feet."
Held, The notice alleged in the petition and set forth therein by exhibit contained a sufficiently definite description of the land sought to be condemned.
( a) There was evidence sufficient to authorize the judge to find there was a previous bona fide effort to procure the property by contract of purchase.
( b) The judge did not err under the pleadings and evidence in refusing an interlocutory injunction.
Judgment affirmed. All the Justices concur.
No. 13110. FEBRUARY 15, 1940.
The Glidden Company, as owner of a tract of land on which it operates a plant for the manufacture of pine tar and products from crude turpentine, instituted an action seeking to enjoin the City of Collins from taking by eminent domain a strip of land fifty feet wide through petitioner's property to be used as a street. A temporary restraining order was granted. The defendant filed an answer.
On the interlocutory hearing the plaintiff introduced evidence to the following effect: Its plant represents an investment of approximately $225,000. One unit is used in distilling crude turpentine gum, and another for the purpose of processing tar extracted from pine wood. The plant covers a considerable area and an additional space is required for storing wood, and to provide room for customers who haul crude products to the plant. The proposed street would go through the heart of plaintiff's property dividing it into two sections, and if the plant should be enlarged as contemplated neither would be sufficiently large for economical plant operations, thus making it necessary to place the new unit across the street which is intended to be used by defendant in connecting up a State highway coming into the city. Such a highway through the property would make it extremely hazardous for the employees who would have to continuously roll rosin barrels across it as well as to traffic. The fire risk would also be greatly increased, as the street would pass directly by the wood stored on the premises, it being very combustible and easily ignited. The proposed street would also subject plaintiff's property to prowlers unless the property was properly fenced, which would cost around $6000. In the event the plant was enlarged, the proposed street would make it necessary to run water and steam over the highway at a cost of approximately $2000, which would render the cost of production so high that the prices of competitors could not be met. The street would damage petitioner's property to the extent of at least $10,000. From the description in the notice of condemnation it is impossible to locate the property sought to be condemned. There was also evidence that the council had never given the mayor or any one else authority to purchase the land, and testimony tending to show that another route agreed upon by the State highway engineers was more practical.
The evidence for the defendant was to the following effect: Petitioner's property would not be damaged, but on the contrary a paved road would add to its value and would tend to drain petitioner's property and serve as a fire break. The land the city seeks to condemn is not worth over $25, which amount was tendered to petitioner. The proposed street is more practical for connecting up the State highway than Manassas Street. The resolution authorizing condemnation of the property was also introduced in evidence.
After hearing evidence the judge entered an order denying an injunction. The plaintiff excepted.