Opinion
23497.
ARGUED MAY 12, 1966.
DECIDED MAY 27, 1966.
Injunction. DeKalb Superior Court. Before Judge Peeler.
Noah J. Stone, Hugh W. Stone, Stone Stone, for appellant.
Robert E. Mozley, George P. Dillard, Hubert O. Edwards, Swertfeger, Scott Pike, W. Fred Orr, II, for appellees.
1. (a) The proceeding by the county to condemn a right of way for sewer purposes was for a public purpose, not a purely private one.
(b) The county had authority to condemn property for that purpose.
2. The ground complaining of the admission of certain testimony was without merit.
ARGUED MAY 12, 1966 — DECIDED MAY 27, 1966.
DeKalb County filed an in rem proceeding under Code Ch. 36-11, as amended by Ga. L. 1937-38, Ex. Sess., p. 251, against Austin Enterprises, Inc., in which the county sought to condemn as a right of way a strip of land for sewer purposes across the property of Austin Enterprises. The condemnee filed a response in which it alleged: that Timberland Developers, Inc., is a private corporation organized for pecuniary gain and owning an adjoining subdivision; that Timberland desires to construct a sewer across the property of the respondent; that the respondent objected; that the proposed sewer runs 225 feet across respondent's lots; that such sewer would be on pillars at least 5 feet above ground, which will irreparably destroy the value of respondent's lots; that DeKalb County is not going to build the sewer but Timberland will construct the sewer at its expense and this easement is for the benefit of Timberland; that Timberland agreed in writing to pay all costs of the condemnation proceeding; that DeKalb County has never sought to construct a sewer over the right of way; that this is a scheme and device by Timberland to use DeKalb County for the purpose of taking private property of one citizen for the personal benefit and gain of another private citizen; that the resolution to condemn by the county commissioners is an ultra vires act on their part; that it is unreasonable, arbitrary and an abuse of discretion by the county commissioners. The response prayed that Timberland be made a party and that DeKalb County be restrained and enjoined from the prosecution of the condemnation proceeding.
Timberland was made a party to the case. The cause then came on for interlocutory hearing and after hearing evidence by the condemnee and the condemnor the trial judge dissolved the temporary restraining order and denied the condemnee's prayer for an interlocutory injunction. The condemnee, Austin Enterprises, appeals from the judgment.
1. (a) The principal contention made by the appellant in its enumeration of errors is that the evidence demanded a finding in its favor because it showed the taking was for a purely private purpose, not a public one. The appellant argues that the action on the part of the county was arbitrary, capricious and in violation of the law.
While at the present it is true that the sewer connector line would serve only one owner, the developer of the subdivision, when the area was developed it was contemplated that many customers would be served. It could not be considered arbitrary on the part of the county commissioners to desire to extend the sewerage system so as to make the system available to additional customers and thereby increase the volume and value of the county sewerage service to its citizens and, incidentally, obtain increased revenue for the county. Be that as it may, "the test is not `the number of people that it accommodates, or who use it, but rests upon the fact that everybody who has occasion to use it may lawfully and of right do so ... the mere fact that it is actually used by one or two individuals does not negative the public character of the use.'" Hightower v. Chattahoochee Industrial Railroad, 218 Ga. 122, 124-125 ( 126 S.E.2d 664): Harrold Bros. v. Mayor c. of Americus, 142 Ga. 686 (1), 688 ( 83 S.E. 534); Rogers v. Toccoa Electric Power Co., 163 Ga. 919 (4b) ( 137 S.E. 272). As pointed out in a railroad condemnation case, "the fact that the track may be for the present benefit of only one industry, while important in determining the character of the use, does not necessarily negative the public character of the use." Railroad Commission of Ga. v. Louisville c. R. Co., 148 Ga. 442, 445 ( 96 S.E. 855). See Bradley v. Lithonia Arabia Mountain R. Co., 147 Ga. 22 (2) ( 92 S.E. 539).
It is also urged that the record shows Timberland agreed to "reimburse DeKalb County for all expenses incurred in the condemnation proceedings against [the condemnee] ... said expenses to include publication fees, appraiser's fees, attorney fees, court costs, and any temporary or permanent awards made to [the condemnee]," and that customarily DeKalb County did not accept a sewer as part of its system until after a trial period and final approval by the county.
In this connection, it should be pointed out that this State condemns land for highway purposes and then contracts with private concerns to construct the roads. Yet no one could seriously contend merely because the State itself does not do the actual construction of roads or the building of bridges, such are not for public use or that the State does not own and control them. The trial period and requirement of approval in the instant case are also analogous to highway operations.
Here, according to testimony, the county supervises, inspects, directs, controls and maintains the construction of sewers along its acquired easements. Whether or not it did the actual construction work on the sewer line would be of no significance. For, there is no evidence showing DeKalb County would not be the owner of the right of way or that the individual developer, Timberland, would acquire any control over or any right pertaining thereto. In such circumstances, there was no attempt to condemn the property for purely private purposes. See McDaniel v. City of Columbus, 91 Ga. 462 ( 17 S.E. 1011); Johnston v. Clayton County Water Authority, 222 Ga. 39 ( 148 S.E.2d 417).
(b) The appellant contends that the acts of the county commissioners were ultra vires since Ga. L. 1949, p. 1590, did not specifically authorize them. In view of the holding in Johnston v. Clayton County Water Authority, supra, the county had the power to condemn property for sewer purposes under Ga. L. 1937, pp. 761-774 ( Code Ann. § 87-803 et seq.), even without the express grant of authority by a special law. See Code Ann. § 87-802 (11a).
2. The only other error enumerated concerns the admission of certain testimony as related by the county engineer: "According to U.S. Coast and Geodetic Survey topographic map we have in our office, the lands that will be served, the total watershed area is 82.64 acres. There is 55.79 acres that will be served directly through this subdivision." This was objected to on the ground that it was hearsay.
For several reasons, there is no merit in this objection. First, other similar evidence by the same witness was introduced without objection. City of Atlanta v. Carroll, 194 Ga. 172 (4) ( 21 S.E.2d 86); Braswell v. Palmer, 194 Ga. 484, 487 (2a) ( 22 S.E.2d 93); Hobbs v. Houston, 195 Ga. 571, 584 ( 24 S.E.2d 884). Also this testimony would not be material on the interlocutory injunction hearing since we have determined that neither the number of persons nor the total area involved would be conclusive in the county's determination of the need to extend its sewer system. Hence, the admission of the evidence would not be harmful error. Furthermore, while "books of science and art are not admissible in evidence to prove the opinions of experts .., notwithstanding the inadmissibility of the books, the opinions contained therein may come to the jury through the mouth of an expert witness." Boswell v. State, 114 Ga. 40, 43 ( 39 S.E. 897); Central R. Co. v. Mitchell, 63 Ga. 173 (3); Mayor of Jackson v. Boone, 93 Ga. 662 (1) ( 20 S.E. 46).
Judgment affirmed. All the Justices concur.