Brunswick & Western Railroad v. Mayor of Waycross

94 Ga. 102

• Court: Supreme Court of Georgia
• Decided: June 11, 1894
• Status: Published

Opinion

Simmons, Justice.

Under the facts of this case we think the judge erred in not granting the injunction prayed for. While it is true the legislature, in the charter of the city of Way-cross, granted power to the municipality to lay out and open streets (Acts 1889, p. 897), it did not grant power to take or damage private property for the purpose, or to provide by ordinance for assessing or otherwise ascertaining the amount of compensation. Our constitution declares that “'private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid” (Code, §5024); and the facts disclosed by the record show that to open a street across the right of way of the railroad company, as contemplated by the municipal authorities, would result in great damage to the company. A municipal corporation has no more right than any other corporation to condemn property and provide the mode of assessing compensation therefor, unless authority to do so is granted by the legislature in express terms or by necessary implication. Such authority cannot be implied from the grant of power to lay but and open streets. In the absence of any further provision authorizing the municipal authorities to condemn property for that purpose, the presumption is that the legislature intended that the necessai'y property should be acquired by contract. The fact that the city has passed an ordinance providing method and machinery for assessing compensation, is no substitute for the necessary statutory authority on the subject. See Lewis, Eminent Domain, §240 ; 6 Am. & Eng. Enc. of Law, 517. Judgment reversed.