Opinion
15944.
OCTOBER 17, 1947.
Petition for injunction. Before Judge Boykin. Troup Superior Court. June 20, 1947.
Duke Davis, for plaintiffs. Lovejoy Mayer, for defendant.
Where a court having jurisdiction of condemnation proceedings enters a judgment that the lands are condemned for public purposes, the condemnee has no right to enjoin the taking and use of the lands by the condemnor, without first having the judgment of condemnation vacated or set aside.
No. 15944. OCTOBER 17, 1947.
The petition in this case recited that the City of LaGrange had brought condemnation proceedings against the petitioners to condemn a portion of their property as a site for the erection of a storage tank in connection with the city's waterworks system. It was alleged that: The petitioners had been served with notice of the condemnation proceedings, assessors had been appointed, and the judge of the superior court had issued an order which adjudged that the land be condemned and appropriated for public purposes as set out in the proceedings. The assessors had filed their report awarding damages, which sums of money had been paid to the Clerk of the Superior Court of Troup County, where they are now held. The petitioners entered their appeal to a jury from such award. The petitioners sought to enjoin the condemnation proceedings because more of their land would be taken than is necessary, and the city owns land suitable for its purpose without acquiring their property.
The exception is to the sustaining of the general demurrers of the defendant and the dismissal of the petition.
In condemnation proceedings the assessors can only assess the amount of compensation to be paid; they can not determine whether it is necessary to condemn the particular property sought to be taken, or whether the condemnor is undertaking to condemn a greater quantity of land than is necessary. The remedy of the condemnee in such a case is to apply to a court of equity. Piedmont Mills v. Ga. Ry. Electric Co., 131 Ga. 136 ( 62 S.E. 52).
In the present case, however, the petition for injunction shows on its face that in the condemnation proceedings the judge of the superior court had entered a judgment condemning the property for public purposes. While it appears from the petition that exceptions pendente lite were filed to this judgment, and it is argued in the brief of counsel for the plaintiff in error that this judgment was prematurely entered and is void, no direct attack is made on such judgment in the petition for injunction, and there is no prayer to have the judgment set aside.
"A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501. Since the petition in this case shows that a judgment had been entered by a court of competent jurisdiction condemning the property of the petitioners, which judgment is not directly attacked by such petition, the court properly sustained the general demurrer.
In view of the above holding, it is unnecessary to decide whether or not a condemnee may bring a petition in equity to enjoin condemnation proceedings, challenging the necessity to condemn, and alleging that an excessive quantity of land would be taken, where the condemnee has participated in the proceedings, an award has been made by the assessors, and the condemnee has filed an appeal to a jury. See Atlantic B. R. Co. v. Penny, 119 Ga. 484 ( 46 S.E. 665). For cases where an injunction was granted for legal cause, after an award and appeal to a jury, see Harrold v. Central of Ga. Ry. Co., 144 Ga. 199 ( 86 S.E. 552), and Warren County v. Todd, 150 Ga. 690 ( 104 S.E. 906).
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.