Opinion
22565.
ARGUED JULY 13, 1964.
DECIDED SEPTEMBER 28, 1964. REHEARING DENIED OCTOBER 13, 1964.
Injunction. Richmond Superior Court. Before Judge Killebrew.
Fulcher, Fulcher, Hagler Harper, A. Montague Miller, for plaintiffs in error.
Boller Yow, D. Field Yow, James Horace Wood, Assistant Attorney General, contra.
The controlling question in passing upon the sufficiency of the petition to withstand a general demurrer is whether the judgment entered in the proceedings instituted by the Highway Department under the provisions of Ga. L. 1961, p. 517, as amended, Ga. L. 1962, Ex. Sess., p. 37 ( Code Ann. Ch. 36-13), included in the property condemned the dwelling of the plaintiffs, which was partly on the right of way. The solution of this question involves the interpretation of a phrase contained in the declaration of taking and the judgment entered in the condemnation proceeding which reads: "the right to enter upon any adjacent land of condemnee herein not taken, for the purpose of removing or dismantling, in its entirety, any and all structures or buildings or other encroachments if any, lying wholly or partially within the right of way sought to be condemned in this proceeding."
The clause appears upon cursory inspection to grant to the Highway Department the absolute right to dismantle and remove all buildings situated partly on the right of way condemned and this would include the plaintiffs' house so situated. However, an analysis of the clause reveals that it does not grant to the Highway Department the right to dismantle or remove so much of the house of the condemnees as is upon their land not condemned, but confers upon the condemnor the mere right to go upon the property of the condemnees for the purpose of dismantling or removing any building, structure or encroachment in part or entirely on the right of way.
"The extent of the condemnor's rights to be acquired in the condemnation proceeding are wholly dependent upon the terms of the law granting it authority to condemn and upon the wording and prayers of the petition to condemn, and only such rights as are prayed for in the petition and as are reasonably necessary for the enjoyment of the easement are vested in the condemnor." Clemones v. Alabama Power Co., 107 Ga. App. 489, 495 ( 130 S.E.2d 600). Two rules of construction must be applied in determining what property is contained in the declaration of taking and the judgment in the condemnation proceedings. The first is as pronounced in State Hwy. Dept. v. Hatcher, 218 Ga. 299, 302 ( 127 S.E.2d 803): "In Frank v. City of Atlanta, 72 Ga. 428, 432 (2), it was held: `The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression.' It is the general rule in this country that statutes conferring the power of eminent domain must be strictly construed, and clear legislative authority must be shown to authorize the taking." The other is: "A grantee, in this country, takes nothing by implication, but is confined to the terms of his charter." Harrison v. Young, 9 Ga. 359 (3). The clause above referred to strongly implies that the condemnor may enter upon the premises of the condemnees not taken and remove any structure or house in part or entirely upon the right of way. But such right is only by way of implication, for, as stated above, the clause goes no further than to permit the condemnor to go upon the property of the condemnees for that purpose.
In interpreting the clause there occurs to the analytical reader the thought that if the condemnor is granted the mere privilege to go upon the premises of the condemnees not taken for the purpose of removing any house that is situated on the right of way, but is given no right to remove the house, the clause is meaningless. However, upon consideration we have reached the conclusion that whether the language quoted is effective for any purpose or can be given effect, the stern command of the law that nothing be included in the declaration of taking or judgment thereunder, by implication, must be obeyed.
A party suffers irreparable injury when he is compelled to surrender an inherent right to part with his property only by his own will and consent or by operation of a valid law. In such instance, the damage is not so much to the property as to the right and liberty of the person.
The plaintiffs had no adequate remedy at law to prevent their home being dismantled and removed, hence the trial judge erred in sustaining the general demurrers and dismissing the petition.
Judgment reversed. All the Justices concur.
ARGUED JULY 13, 1964 — DECIDED SEPTEMBER 28, 1964 — REHEARING DENIED OCTOBER 13, 1964.
George S. and Dorothy B. Prescott brought their suit seeking equitable relief against Leon Barton and others t/a Barton House Wrecking Company in the Superior Court of Richmond County. The averments of the petition were: that the plaintiffs are owners of certain described property in Richmond County; that the State Highway Department of Georgia (hereinafter referred to as the Highway Department) instituted a condemnation proceeding against the plaintiffs and condemned a certain portion of their land; that a major portion of the residence of the plaintiffs is located on their property and a minor portion of it on the property condemned by the Highway Department; that the defendants claim to have purchased the entire residence from the Highway Department and "are in the process of preparing to dismantle and remove the entire residence," although the greater part of the residence is still owned by the plaintiffs; that the plaintiffs will suffer irreparable loss and damage if the defendants are allowed to dismantle and remove that portion of the residence not located on the land condemned by the Highway Department; that the plaintiffs are without an adequate remedy at law.
The prayers were: that, pending further hearing and until further order of the court, the defendants be restrained and enjoined from dismantling or removing the portion of the residence located on the property of the plaintiffs and not on the land condemned; that a rule nisi issue and, pending a hearing on the rule, that the defendants be temporarily restrained and enjoined as herein prayed.
Attached as exhibits to the petition were the petition of the Highway Department seeking condemnation of the land in question, the declaration of taking and resolution by the Highway Board, the citation and judgment of the court which granted the condemnation, all of which, beside a description of the lands condemned, contained the following grant to the Highway Department: "the right to enter upon any adjacent land of condemnee herein not taken, for the purpose of removing or dismantling, in its entirety, any and all structures or buildings or other encroachments if any, lying wholly or partially within the right of way sought to be condemned in this proceeding."
The Highway Department was duly allowed to intervene and made a party defendant to the proceedings by order of the court. The Highway Department filed its demurrers to the petition, in which the original defendants joined. The cause came on for a hearing at which time the general demurrers were sustained and the petition dismissed. The case is here on exception to that judgment.