Opinion
24545.
ARGUED MARCH 13, 1968.
DECIDED APRIL 8, 1968.
Injunction. Fulton Superior Court. Before Judge Tanksley.
M. Dale English, L. Clifford Adams, Jr., Heard Leverett, for appellant.
Troutman, Sams, Schroder Lockerman, William H. Schroder, Milton A. Carlton, Jr., Tillman, Brice, McTier Coleman, B. Lamar Tillman, for appellee.
No land can be brought within the corporate limits of a city under Ga. L. 1962, p. 119 ( Code Ann. §§ 69-902, 69-903), in the absence of the signature of its owner in an application to annex. The owner of the right of way of State Highway 76 not having signed such application to annex, the right of way was not annexed, and the power company, with the consent of the State Highway Department, had a right to place its poles and wires thereon without obtaining the permission of the City of Adel whose attempt to annex was abortive.
ARGUED MARCH 13, 1968 — DECIDED APRIL 8, 1968.
This is a case involving injunctive relief and is a continuance of other litigation involving a municipality and a utility company over the service of electricity to a new industry in the city. Consideration of an earlier case in which injunctive relief was sought may be found in Weyerhaeuser Co. v. City of Adel, 223 Ga. 668 ( 157 S.E.2d 441). The ruling in that case being that the city could not prevent the contracting for electric current between the utility company and the industry because the power company proposed to furnish the service without using any city street, resulted in this case in which the city complains that its streets are being used.
The case was heard by the court without the intervention of a jury upon the pleadings, stipulations, admissions, interrogatories, testimony and other evidence. After a ruling in favor of the power company, the appeal is from that judgment denying the prayers for injunctive relief.
The litigation here involves numerous questions of (1) consent to use the streets; (2) the granting of a possible limited franchise; (3) an estoppel; (4) the question of whether the alleged annexation of additional property within the city brought Highway 76 into the city as a city street; and (5) whether under its charter power granted to the utility corporation by the General Assembly it needs the consent of the municipality to use a city street in the furnishing of electricity to a customer. Since it is admitted that the power company has placed its poles and lines for distribution to Weyerhaeuser upon Georgia Highway 76 until it crosses Interstate Highway No. 75 to the plant, a ruling on whether or not said highway is a street of the city may well be decisive, although several of the other features of the case might be controlling on whether the court erred in refusing to grant the injunction. The following opinion is based upon whether or not the annexation of an area on the western side of the city resulted in the portion of the highway along which the power company constructed its lines with permission of the State Highway Department made the highway become a street of the city. There are several attacks on the annexation proceedings, and any one of these could be decisive that the territory allegedly annexed is not a part of the city.
Notwithstanding the numerous principles of law raised and discussed by opposing counsel, this case will be decided when the plain provisions of Ga. L. 1962, p. 119 ( Code Ann. §§ 69-902, 69-903), are applied to the undisputed facts in this case. In order for the municipal authorities to acquire jurisdiction to extend the corporate limits they must have an application therefor signed by all the owners of all the lands embraced therein. This means that not even a foot of land can be so annexed in the absence of the signature of its owner on such application to annex. The owner of the right of way of State Highway 76 signed no such application. It is questionable in two other instances as to whether the annexation proceeding is void, but we need go no further than the right of way on which the power line is constructed. It is as simple as "A B C" that this right of way was not thereby annexed. The only answer to this simple logical fact that we have heard is that in some mysterious way the further content of the 1962 Act defining the meaning of "contiguous area," could, should or did cause the highway to become annexed. The obvious purpose of this definition is to explain the previous provision for annexing to the existing corporate limits unincorporated areas "contiguous to the existing corporate limits." This provision has no reference to any lands where the owners sign no application to annex. Its sole purpose is to say that although a road, creek, river, interstate highway, railroad, or even other municipal property of another political subdivision passes between the lands of "A" and the corporate boundary, "A's" land is contiguous for the purpose of annexing it when he signs an application therefor.
Therefore, when this record shows beyond question that the precise land upon which the Georgia Power Company has done everything complained about by the city is the right of way of State Highway No. 76, with the express permission of the State Highway Department, and that this area has never been annexed to the City of Adel because the owner of that right of way signed no application to be annexed — which is actually jurisdictional to annexation —, the trial court had no choice but to deny plaintiff's prayer for relief and grant the ruling prayed for by the defendant.
Judgment affirmed. All the Justices concur.