Opinion
22227.
ARGUED OCTOBER 14, 1963.
DECIDED NOVEMBER 7, 1963.
Condemnation of land; equitable intervention. Cobb Superior Court. Before Judge Manning.
Grubbs, Prosser Burke, for plaintiffs in error.
Holcomb McDuff, Robert E. McDuff, Hicks Howard, contra.
1. The intervention was subject to the demurrer that it fails to set forth grounds of unconstitutionality or ultra vires acts of the board preventing the acquisition of the property for school purposes.
2. Conceding but not deciding that the intervenors as abutting owners have a right to intervene and assert any matters material to them under Code § 36-1113, the allegations of fact are too imaginative, speculative and remote to allow interference, and the court did not err in sustaining the demurrers to the intervention.
ARGUED OCTOBER 14, 1963 — DECIDED NOVEMBER 7, 1963.
This is an action in rem brought by the Marietta Board of Education to condemn certain property in Marietta, Cobb County, Georgia, for the purposes of constructing school facilities, that is a football field or stadium, under Code Ch. 36-11, as amended. Thereafter, three adjoining property owners, alleging that they are also citizens and taxpayers having an interest in the public moneys appropriated for school purposes in said city as well as an interest in the land sought to be condemned by reason of being abutting property owners, were allowed to intervene and file objections seeking injunctive relief and temporary and permanent injunctions against the further condemnation of the property. They allege, in substance, that they will suffer irreparable harm and injury if the property is allowed to be condemned by the board of education by reason of the following: (1) the acquisition and construction of the football stadium will be in violation of the zoning ordinances of the city; (2) a nuisance to the adjoining property owners will result by reasons of trespass of noise of people, bands, a loudspeaker system and night lighting of such intensity and power as to glare over the entire neighborhood, including intervenors' property into late hours of the night; (3) large crowds of people in automobiles will be attracted so as to create a traffic and pedestrian hazard in and about the premises. They further allege the petitioner is without the authority or right to condemn the property since it does not have the right to exercise the power of eminent domain in that it is not shown that said board of education is constituted under or by the authority of or within the definition of Ga. L. 1956 p. 100 ( Code Ann. § 32-951, 32-952) which confer the power of eminent domain upon certain independent and public school systems; it is not shown that the condemnor is among the conferees of such power; the definition of "independent school systems" referred to in Art. VIII, Sec. VII, Par. I of the Constitution of 1945 ( Code Ann. § 2-7001) is so vague, ambiguous and uncertain in its terms that it is insufficient to confer the grant of power of eminent domain upon the condemnor; and Ga. L. 1956, p. 100, is unconstitutional for certain enumerated reasons. General and special demurrers were filed thereto, and after a hearing, the general demurrers were sustained. The exception is to that judgment.
Despite the almost interminable criticisms throughout the intervention, we can and do place them in two classifications, to wit: (1) As taxpayers petitioners seek to prevent alleged expenditure of public funds to acquire by condemnation the land involved; and (2) As abutting landowners they seek to have enjoined anticipated use of the land after it is acquired. We deal with the case in the foregoing order.
1. As taxpayers the intervenors are entitled to prevent by injunction unlawful expenditure of public funds. Martin v. Fulton County, 213 Ga. 761 ( 101 S.E.2d 716); Timbs v. Straub, 216 Ga. 451 ( 117 S.E.2d 462); Mitchell v. State Hwy. Dept., 216 Ga. 517 ( 118 S.E.2d 88). But the challenge of the authority of the condemnor to condemn for the purposes as stated is utterly without merit. Code Ann. § 2-7001 (Const. of 1945); Ga. L. 1890-91, p. 1014; Code Ann. § 32-951, 32-952 (Ga. L. 1956, p. 100); Mayor c. of Savannah v. Collins, 211 Ga. 191 ( 84 S.E.2d 454). The attacks upon other legislative acts are so obviously invalid that we will not consume time and space to discuss them. They authorize this condemnor to acquire land for the purposes stated and this is enough to show a total want of ultra vires acts or want of authority. Hence the expenditure of public funds for this purpose is authorized by law. This phase of the intervention is subject to the demurrer, and the demurrer to same was correctly sustained.
2. But the intervenors would not stop at this and went further to assert that as owners of abutting lands they could, under Code Ch. 36-11, as amended, and our ruling in Mitchell v. State Hwy. Dept., 216 Ga. 517, supra, intervene and have their objections adjudicated. Without here deciding if those so situated could intervene, but assuming that under the Mitchell case they could, we find that they do not show any grounds for relief. Admittedly, none of their property is being taken, and their sole claimed right is to prevent what they speculate will in the future constitute a nuisance. No facts are alleged or shown that the anticipated harm will follow with reasonable certainty. Code § 72-204. If the property after having been acquired should be used in a manner to constitute a nuisance, then and only then would equity intervene to avoid the nuisance. The stated intended uses do not per se constitute a nuisance, and presumably they will never become such. Therefore the alleged fears are imaginative, speculative and too remote to allow interference at this point. Consequently the intervention shows no grounds for relief in this phase, and the demurrer was properly sustained.
Judgment affirmed. All the Justices concur.