Opinion
15401.
FEBRUARY 20, 1946.
REHEARING DENIED MARCH 5, 1946.
Petition for injunction. Before Judge Harper. Stewart Superior Court. October 20, 1945.
Dykes Dykes, for plaintiff.
Eugene Cook, Attorney-General, G. Y. Harrell, R. S. Wimberly, and L. C. Groves, Assistant Attorney-General, for defendant.
1. In the condemnation of property for public road purposes under the Code, Chapters 36-1 to 36-6, inclusive, it is necessary, preliminary to the commencement of the proceedings, for the condemnor to make an effort to agree with the owner of the property upon the price to be paid for the land. Code, §§ 36-302, 36-303; City of Elberton v. Hobbs, 121 Ga. 750 ( 49 S.E. 780); Bridwell v. Gate City Terminal Co., 127 Ga. 520 (8), 535 ( 56 S.E. 624, 10 L.R.A. (N.S.) 909); Piedmont Mills v. Ga. Ry. Elec. Co., 131 Ga. 137 (4) ( 62 S.E. 52); City of Atlanta v. Austell, 146 Ga. 456 ( 91 S.E. 478). Where, as in this case, the plaintiff alleges that neither the State Highway Department, nor any one for it, has offered to pay him for his property, such allegation is insufficient to disclaim proper negotiations for the right of way sought to be condemned. Under the Code, § 95-1721, it is made the duty of the proper county authorities to assist in procuring rights of way for State-aid roads and to pay for the same out of the county treasury. Therefore negotiations by such county authority, in an effort to agree with the owner of the property to be taken, are not only authorized but required under the section cited. It is shown by the evidence of the sole commissioner of Stewart County that he stated to the plaintiff that he "wanted to pay him the purchase-price, if they could agree on it or leave it to arbitration," and the plaintiff replied that he "did not want either one and would not do either one, that he did not want the road at this place." The requirement that the condemnor make an effort to agree with the property owner upon the price to be paid was sufficiently complied with by the action of the county commissioner as above set forth, and it was not necessary that any representative of the State Highway Department negotiate with the plaintiff further before the filling of condemnation proceedings.
2. The plaintiff in error alleged in his petition that the route from Lumpkin to Preston through Richland was a State-aid road. The State Highway Department under the Code, § 95-1708, has the right to resurvey and relocate in their entirety any or all of the State-aid roads, keeping in view only the control points, which in this instance are indisputably the same. Since the plaintiff in error, however, did not raise the question in his petition that the route through Richland on Nicholson Street had not been duly authorized, relocated, and approved by the State Highway Department, he can not raise the question for the first time in his bill of exceptions. Other questions not raised by the plaintiff's petition and not passed on by the trial court, but raised for the first time by the bill of exceptions, can not be considered by this court.
3. "A court of equity will not interfere with the discretionary action of the State Highway Department in locating, grading, and improving a proposed State-aid highway, within the sphere of their legally designated powers, unless such action is arbitrary and amounts to an abuse of discretion." Crump v. State Highway Department, 191 Ga. 130 ( 12 S.E.2d 310), and cases cited. The evidence authorized a finding by the trial judge that the action of the State Highway Department in the relocation of the highway from Lumpkin in Stewart County. through Richland, to Preston in Webster County, was not an abuse of its discretionary powers.
Judgment affirmed. All the Justices concur.
No. 15401. FEBRUARY 20, 1946. REHEARING DENIED MARCH 5, 1946.
Charles C. Miller filed a petition for injunction against the State Highway Department, alleging that it has contracted and agreed with Stewart County to complete the building of a State-aid road, known as State Route No. 27, from Lumpkin in Stewart County to Preston in Webster County, and is undertaking to change the road through Richland from Broad Street to Nicholson Street, and in making said change is undertaking to condemn private property on Nicholson Street. It is further alleged that the route as proposed (and as described in the petition), over certain railroad tracks, is extremely dangerous. Other routes are more desirable and would be safer, and would not destroy homes and values as the route selected would. Nicholson Street is strictly a street for homes and residences. Growing along both sides of the street are large shade trees, making said street a most desirable street for homes. The petitioner's home is the one in which he was born, has been his home all of his life, and he has expended large sums of money to make it comfortable and desirable. The notice to condemn his property describes a space through his front yard, which will put the right-of-way line within six feet of his doorsteps. Such construction will necessitate the cutting of his shade trees and destroy the intrinsic financial value of his home and lot. If his property is condemned, he will suffer an immeasurable loss in so far as financial value is concerned, and will suffer the loss, whatever it may mean, of home and home surroundings. Such location is arbitrary, unnecessary, and dangerous. Neither the defendant nor anyone for it has offered to pay him for his property, but the defendant is undertaking to condemn regardless. The petitioner has no adequate remedy at law. In the proceedings for condemnation as begun he would have no voice except to establish the money value of the property being taken, which under the circumstances would not and could not mean the real value of his property. Without invoking the aid of a court of equity he is entirely remediless and would be forced to suffer an inestimable loss. He prays that the defendant be enjoined and restrained from proceeding with the location of said highway on Nicholson Street in the town of Richland, and be restrained and enjoined from proceeding with the condemnation of the petitioner's property.
Great latitude was allowed both parties by the trial court in the introduction of evidence, which covers more than 60 pages. In so far as germane to the issues made by the petition, the evidence was conflicting and need not be quoted here.