Opinion
13239.
MAY 17, 1940. REHEARING DENIED JUNE 14, 1940.
Petition for injunction. Before Judge Dorsey. Fulton superior court. December 27, 1939.
H. W. McLarty and Lewis H. Fowler, for plaintiff.
Lamar Murdaugh, C. E. Jackson, D.C. Chalker, and Julius A. McCurdy Jr., for defendants.
1. A petition by a landowner to enjoin alleged joint trespasses by a resident of the county and others who do not reside in the county is not subject to demurrer as showing that the court is without jurisdiction, on the ground that the petition alleges that the only resident defendant served with process is an employee of non-resident defendants, and no substantial relief is sought or shown against him, where, in addition to such an averment as to employment, the petition also alleges that the resident defendant is participating in the trespasses, and prays injunctive relief against him.
2. Under the act of January 13, 1938 (Ga. L. Ex. Sess. 1937-1938, p. 251), amending the Code, §§ 36-1104 et seq., and now permitting counties to condemn land by petition and rule nisi, it is not necessary that the condemnation petition allege an unsuccessful effort to procure the land by contract or a failure to agree as to compensation.
3. Under the statutes above stated, county authorities may by petition condemn land for a road which is about to become a part of the State highway system, without being relegated to the procedure of the Code, §§ 95-202 et seq., relating to the establishment, relocation, or alteration of a strictly county road.
4. The previous condemnation proceeding by petition of the county authorities was not subject to attack by the present injunction petition of the former landowner, as containing an insufficient description of the condemned land, where the description in the former proceeding identified the property as being described in plans of file in the office of the road commissioner of the county, and where the petition neither denied the existence of such plans and description nor alleged any fact showing their insufficiency.
5. The mere general averment in the present petition that the defendants "have taken more land than said condemnation proceedings called for," without remuneration, is insufficient to show a trespass by the defendants.
6. Under the preceding rulings, the injunction petition was properly dismissed on general demurrer.
No. 13239. MAY 17, 1940. REHEARING DENIED JUNE 14, 1940.
1. Under art. 6, sec. 16, par. 4, of the constitution (Code, § 2-4304), "suits against . . joint trespassers, residing in different counties, may be tried in either county." Therefore, even though art. 6, sec. 16, par. 3 (§ 2-4303), requires that "equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed" (see also § 3-202), where a petition for injunction, brought in the county where one defendant resides, seeks relief against joint trespasses by all of the defendants, the court is not without jurisdiction, even though all except the one defendant are residents of other counties of the State. This is true, even though the resident defendant, as an employee or agent of other defendants, may have been acting only under their command or authority in the commission of the trespasses. Baker v. Davis, 127 Ga. 649, 652 ( 57 S.E. 62), and cit; So. Ry. Co. v. Grizzle, 124 Ga. 735 ( 53 S.E. 244, 110 Am. St. R. 191); Wall v. Mercer, 119 Ga. 346, 350 ( 46 S.E. 420); Millbank v. Penniman, 73 Ga. 136 (5, a); McPhaul v. Fletcher, 111 Ga. 878 ( 36 S.E. 938); Flowers Inc. v. Chamblee, 165 Ga. 703 (2) ( 141 S.E. 907). Cases relied on by the defendants, based on other rules not applicable to a case of this character, are distinguished in Baker v. Davis, supra. Accordingly, this petition by a landowner, to enjoin alleged trespasses by the State Highway Board, a county commissioner, and individuals, was not subject to the demurrers of the defendants on the ground that the petition showed that the court was without jurisdiction of any of the defendants, since the petition did not seek, or show any ground of, substantial relief against the resident defendant.
2. Before the act of January 13, 1938 (Ga. L. Ex. Sess. 1937-1938, p. 251), amending the Code, §§ 36-1104 et seq., relative to the condemnation of land by petition, counties were not permitted to proceed under the sections mentioned, but were limited to other statutory methods. However, under this act of 1938, counties are not thus limited, but are brought within the provisions of §§ 36-1104 et seq., whereby they are given the cumulative right to institute condemnation proceedings by petition and rule nisi, as therein provided. Just as under the old procedure (§§ 36-302 et seq.) it was not necessary under § 36-313, stating what a condemnation notice should contain, that the notice should set forth a previous unsuccessful effort to purchase and a failure to agree on the purchase-price ( Barber v. Housing Authority of Rome, 189 Ga. 155 (3), 160, 5 S.E.2d 425), so in a proceeding by petition under the new law, since the section stating the necessary averments of the petition does not require any such allegation (§ 36-1105), it is not necessary that any be made with respect to a previous unsuccessful effort to procure the land by contract and agree upon the compensation. Saint Clair v. State Highway Board, 45 Ga. App. 488 ( 165 S.E. 297).
3. Before the act of 1938, above mentioned, which extended the right to proceed by petition, under §§ 36-1104 et seq., to all persons and corporations having the right of condemnation, there were holdings by this court that a county can not lay out and establish a strictly county road, as distinguished from one designated by the State Highway Board as a part of the State-aid system, by notice to the owner, assessors, and award, as provided by §§ 36-301 et seq., but that in such a case county authorities were relegated to the procedure under §§ 95-202 et seq., requiring publication of citation, notice, and assessment of damages as therein provided. Mitchell County v. Hudspeth, 151 Ga. 767, 772 ( 108 S.E. 305); Ainslee v. County of Morgan, 151 Ga. 82 ( 105 S.E. 836); Commissioners of Decatur County v. Curry, 154 Ga. 378 (2), 385, 386 ( 114 S.E. 341); and see Cook v. State Highway Board, 162 Ga. 84 (4), 98 ( 132 S.E. 902). These decisions, however, requiring action by the county under §§ 95-202 et seq., did not relate to the laying out of a road which had been designated as a part of the State highway system or was about to be so made. Lee County v. Smithville, 154 Ga. 550, 552 et seq. ( 115 S.E. 107). See also Shore v. Banks County, 162 Ga. 185, 186 ( 132 S.E. 753); Barham v. Grant, 185 Ga. 601 (3), 603 ( 196 S.E. 43); State Highway Dept. v. H. G. Hastings Co., 187 Ga. 204, 210 ( 199 S.E. 793). In like manner, since the proceeding involved in this case, in which the State Highway Board is made a party defendant, related to the laying out of a road which was to become a part of the State highway system, the county was not relegated to the procedure under the Code, §§ 95-202 et seq., but was privileged to proceed by petition under the act of 1938, amending §§ 36-1104 et seq. No question arises as to whether, if the road had been merely a county road, and was not a part or about to become a part of the State highway system, the county authorities might proceed by petition under the provisions of the same sections as amended by the act of 1938. Nor is any question presented as to whether a county, in laying out a local county road, could now proceed under §§ 36-301 et seq., in view of the additional words embodied by the codifiers in § 36-1001, and also included in the amendatory act of 1937 (Ga. L. 1937, pp. 433, 434), by which additional words the scope of that section as it stood in the previous Code was so extended as to provide for condemnation by counties, not only for "grading, improving," etc. (Code of 1910, § 5243), but for the "laying out" of such a road. See Parrish v. Glynn County, 167 Ga. 149 ( 144 S.E. 785); Code, § 36-1002.
4. The judgment of DeKalb superior court, condemning the present petitioner's land under the procedure of the Code, §§ 36-1104 et seq., was not subject to attack as void on the ground that the judgment contained no sufficient legal description of the land condemned, where the judgment stated that it was "the property described in the petition," and the condemnation petition, in addition to describing the land as 1.886 acres and by general language, stated that it was "more definitely described as a tract within the right of way lines as shown on the plans of said road of file in the office of the commissioner of roads and revenues of DeKalb County;" and where the present injunction petition fails to allege that there was no such plan of file in such office, or to show wherein such plan did not adequately describe the condemned land, but states, merely as a legal conclusion or opinion of the pleader without alleging facts, that such plans "upon inspection are not subject to any intelligent description." See, as to the sufficiency of descriptions of land by key or reference to maps or plans of file in some stated accessible place, Barber v. Housing Authority of Rome, supra, and cit.; Anderson v. Howard, 34 Ga. App. 292 (7), 297 ( 129 S.E. 567). In Green v. Road Board of Bibb County, 126 Ga. 693 (1, a,) 698 (56 S.E. 59), relied on by the petitioner, the description was held insufficient, because there was not only "nothing in the report of the commissioners," but nothing "otherwise of record, to indicate the courses and distances, or the manner and location of the pegs," as placed by the commissioners in their survey.
5. There is no merit in the final ground on which the petitioning landowner seeks to enjoin the alleged trespasses of the defendants, that they "have taken more land than said condemnation proceedings called for, and confiscated said property by trespassing thereon and without any remuneration therefor," since there is no sort of description or statement even as to quantity of the land which it is thus contended was not covered by the former condemnation proceedings.
6. Under the preceding holdings, the court properly dismissed the petition for injunction on the general demurrers of the defendants.
Judgment affirmed. All the Justices concur.