Opinion
37297.
DECIDED NOVEMBER 26, 1958.
Condemnation, etc. Stewart Superior Court. Before Judge Rees. April 9, 1958.
J. E. B. Stewart, for plaintiffs in error.
Dykes, Dykes Marshall, T. O. Marshall, Jr., contra.
Indicative of whether a party acts in good or bad faith in a given transaction is his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter's legal rights.
DECIDED NOVEMBER 26, 1958.
Georgia, Florida Alabama Railroad Company filed a petition for the condemnation of certain land owned by J. Musco Pickett and Mrs. Blanche A. Coffin. Pickett and Mrs. Coffin, the condemnees, then petitioned the Superior Court of Stewart County for an injunction against the railroad to enjoin the railroad from its condemnation action. That petition is substantially as follows: "1. Petitioners show that on the 17th day of November, 1954, plaintiffs were served by the Sheriff of Stewart County with a copy of condemnation proceedings instituted by said defendant against said plaintiffs for the condemnation of certain real property belonging to plaintiffs, a description of which is contained in said notice of condemnation. 3. Plaintiffs further show that defendant is proceeding illegally in that nowhere in said notice of condemnation is it alleged that the Georgia Public Service Commission has approved the taking of the property described therein, and further that plaintiffs have never received notice that such a hearing has been held or that such hearing is contemplated by the Georgia Public Service Commission. 4. Plaintiffs further show that it is not necessary for defendant to acquire the property of plaintiffs by condemnation proceedings or otherwise for the reason that there is ample property elsewhere which may be acquired by defendant and to which no substantial damages will accrue. 5. That plaintiffs own thirty (30) building lots lying immediately adjacent to the property of defendant and that the taking by defendant of a portion of said lots as set forth in the notice of condemnation will destroy the value of at least fifteen (15) of said lots for building purposes. 6. Plaintiffs show further that they will suffer irreparable loss and damage if said property is taken for the reason that by virtue of the taking of said property said town building lots belonging to plaintiffs will be rendered worthless for building purposes. 7. Plaintiffs show that defendant has acted in bad faith in seeking to condemn the property belonging to plaintiffs in that defendant has at all times known that there was property available to it other than the property belonging to plaintiffs, which would serve the interests of defendant equally well or better and that defendant knew further that the property belonging to plaintiffs which is sought to be condemned is valuable town property, properly subdivided for building purposes and is so shown on the plat of the Town of Richland, Georgia."
In addition to a restraining order and injunction, the plaintiffs prayed for $1,000 attorney's fees. Subsequently, the railroad moved to dismiss its condemnation action, but the court took no action on this motion, and the plaintiffs in error would not agree to the dismissal of such action until their alleged damages, consisting of attorney's fees, were paid.
Therefore, an answer and general demurrer were filed to the petition for injunction.
The plaintiffs then amended their petition as follows: "1. Plaintiffs amend paragraph seven (7) of their petition by adding at the end thereof the following: Plaintiffs show further that defendant has caused plaintiffs unnecessary trouble and expense in that it, without just cause filed condemnation proceedings against them and sought by filing such proceedings to unjustly take from them their property and that it became necessary for plaintiffs to employ counsel to protect their legal rights and to resist the illegal, unwarranted and unnecessary attempts of defendant to unlawfully take their property. 2. Plaintiffs add another paragraph to be known as Paragraph 8: Plaintiffs further show that after the filing of said condemnation proceedings by defendant against plaintiffs and that after the filing of this suit by plaintiffs against defendant that defendant, on December 4, 1956, sought to dismiss the condemnation proceedings previously filed against plaintiffs and that plaintiffs refused to agree to a dismissal of said condemnation proceedings until such time as defendant reimbursed plaintiffs for expenses incurred by them in connection with defending said suit, or condemnation proceedings. Plaintiffs further show that they are obligated to pay to J. E. B. Stewart the sum of one thousand ($1,000) dollars for legal fees in said matter and that defendant should be required to reimburse them up to and including said amount for reason heretofore stated."
The court sustained a renewed general demurrer to the petition as amended and dismissed the action, and the plaintiffs except.
The only question for decision is whether the petition alleged facts, which if proved, could be considered by the jury as showing bad faith on the part of the railroad company. If the averments of the petition are sufficient for that purpose, under the provisions of Code § 20-1404, the issue of whether the plaintiff is entitled to recover attorney's fees is made by the pleading.
Indicative of whether a party acts in good or bad faith in a given transaction is his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter's legal rights.
Code § 94-301 confers upon railroad companies the power to condemn property for depot sites, and the accommodation of their mail lines, side tracks, switching facilities and other related purposes. Code (Ann.) § 94-321 by its plain wording, applicable alike to domestic and foreign railroad companies, requires all railroads to first procure the permission of the Public Service Commission before proceeding with condemnation of private property for the purpose referred to in the preceding paragraph. The latter statute is for the protection of the condemnee's property rights, and is a valuable safeguard against his property being improvidently taken by railroad companies. When the railroad undertook to take the plaintiffs' property without complying with the mandate of Code (Ann.) § 94-321 it amounted to an attempt to take the same without due process of law. From this fact, especially when considered with the allegations of the petition that for certain designated reasons the railroad company ought to condemn other property for its purposes rather than that of the plaintiffs, sufficiently presented an issue as to whether the railroad company acted in good faith in instituting and carrying on the condemnation proceedings. The fact that after being enjoined from proceeding with the condemnation, and confronted with its failure to comply with Code (Ann.) § 94-321 the railroad company dismissed the proceedings is not conclusive of good faith on the company's part, or even of evidential value in showing its bona fides. What one is forced to do cannot be accredited to his good faith.
Judgment reversed. Nichols, J., concurs. Felton, C. J., concurs in the judgment.