The view is too narrow. In Woodside v. City of Atlanta, 214 Ga. 75, 83 ( 103 S.E.2d 108), it is made clear that the taking or damaging with which the constitutional provision is concerned may be of any species of property. In the Woodside case the principle is pronounced: "The term `property' is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed.
(Citation and punctuation omitted.) Woodside v. City of Atlanta, 214 Ga. 75, 83 (2) ( 103 SE2d 108) (1958). "At times, it happens, either by inadvertence or with predatory intent, that one adjoining owner will extend his dominion over the boundary into the lands of his neighbor."
McMullan appealed this award to the superior court for a jury trial, but he did not tender the amount of the award prior to filing the appeal. Cline filed a motion to dismiss the appeal, contending that the applicable Code sections, when read in light of Woodside v. City of Atlanta, 214 Ga. 75 ( 103 S.E.2d 108) (1958), require tender of the assessors' award as a condition precedent to the filing of an appeal. The trial court denied Cline's motion to dismiss, and we granted his application for interlocutory appeal to review that ruling.
See Trammell v. Throgmorton, 210 Ga. 659 ( 82 S.E.2d 140), and citations. As authority for the ruling excepted to, the Court of Appeals cited and relied on Woodside v. City of Atlanta, 214 Ga. 75 ( 103 S.E.2d 108), and State Highway Department v. Wilson, 98 Ga. App. 619 ( 106 S.E.2d 544), each of which involved a proceeding in rem to condemn land for a public use, a proceeding which had been brought under the provisions of Chapter 36-11 of the Code of 1933 as amended by the act of 1938. While those cases hold that the condemnor's appeal could not be maintained and prosecuted, yet the record in each of them shows that the award there made had neither been tendered to the owner nor paid into the registry of the court. This being true, they are not in point on their facts with the instant case, and therefore constitute no authority for the ruling made by the Court of Appeals on which error is assigned in the application for certiorari.
Accordingly, we reverse the trial court's order setting aside Fulton County's voluntary dismissal of the condemnation petition. See Woodside v. City of Atlanta, 214 Ga. 75, 82(3), 103 S.E.2d 108 (1958); Ga. Power Co. v. Fountain, 207 Ga. 361, 367(b), 61 S.E.2d 454 (1950); Thomas v. Central of Ga. R. Co., 169 Ga. 269, 272, 149 S.E. 884 (1929); Housing Auth. of Atlanta v. Mercer, 123 Ga.App. 38, 42, 179 S.E.2d 275 (1970); Hodges v. South Ga. Natural Gas Co., 111 Ga.App. 180, 180–181, 141 S.E.2d 182 (1965).Woodside, 214 Ga. at 82(3), 103 S.E.2d 108.
GARDNER, Presiding Judge. This case involves practically the same facts and the same principles of law as are shown in Woodside v. City of Atlanta, 214 Ga. 75 ( 103 S.E.2d 108) and State Highway Dept. v. Blalock, 98 Ga. App. 630 ( 106 S.E.2d 552). It follows that the decisions rendered in those cases are controlling in the instant case. However, it will be noted that in the instant case, as in the Blalock case, the condemnee also dismissed the case.
But, where such is not the case, a decision of the Supreme Court, although by a divided bench, is binding upon this court, including that part of the decision declaring certain language in an older Supreme Court case to be obiter. 2. ( a) Language in previous Supreme Court cases either distinguished by that court or declared to be obiter in the case of Woodside v. City of Atlanta, 214 Ga. 75 ( 103 S.E.2d 108) cannot be considered by this court in this case since the evaluation of older Supreme Court decisions by the majority in the Woodside case is binding on this court. ( b) The cases of Georgia So. Fla. R. Co. v. Small, 87 Ga. 355 ( 13 S.E. 515) and Gate City Terminal Co. v. Thrower, 136 Ga. 456 ( 71 S.E. 903) do not require a holding contrary to that reached in the Woodside case.
In this case the effect of the amendment was to limit the condemnor's use of the land condemned. It did not amount to an abandonment nor to a substantial change as would require that such an amendment be stricken. Condemnee urges that under authority of Woodside v. City of Atlanta, 214 Ga. 75 ( 103 S.E.2d 108), a "taking" of the property has already occurred and that the condemnor is already vested with title. Hence, it is argued that no changes can be made by amendment.
The recent decisions, both of this court and of the Supreme Court, dealing with these questions, are against the position which we now take. In the case of Woodside v. City of Atlanta, 214 Ga. 75 (3), the court said: `For the reason stated in the corresponding division of the opinion, tender to the condemnees of the assessors' award of compensation for the property sought to be condemned, or payment of it into the registry of the court on their refusal to accept it, was a condition precedent to the condemnor's right to file and prosecute an appeal to a jury in the Superior Court of Fulton County.' The above ruling of the Supreme Court was followed by this court in the three cases reported in 99 Ga. App. 24, and the case of State Highway Department v. Wilson, 98 Ga. App. 619, et seq.; and, in this latter case, the Supreme Court denied our application for certiorari. Thus, we are compelled to face up to the fact that, in order for this court to sustain our position and reverse the court below in the instant case, it will be necessary for this court not to only reverse its position in the above cited cases, but that it would also be necessary for this court to undertake to revers
However, since it was not so answered another question is presented to this court, to wit: Does the delivery of a check to the clerk of the superior court constitute payment into the registry of the court so as to authorize an appeal from the award of the assessors (or special master), in a condemnation case where there are insufficient funds on deposit to cover such check during the entire 10-day period when an appeal could be entered by the condemnor? Under the decision of the Supreme Court in Woodside v. City of Atlanta, 214 Ga. 75 ( 103 S.E.2d 108), the amount of the assessor's award must be paid into the registry of the court, if such amount is not paid to the condemnee, within 10 days in order for the condemnor to appeal to a jury in the superior court. The condemnor in the present case delivered a check, within the statutory time, to the clerk of the superior court who in turn delivered such check to the condemnee.