City of Douglas v. Atlantic Coast Line Railroad Co.

Supreme Court of Georgia

City of Douglas v. Atlantic Coast Line Railroad Co.

64 S.E.2d 63, 207 Ga. 690, 1951 Ga. LEXIS 515

CourtSupreme Court of Georgia

DecidedMarch 12, 1951

Docket17382

StatusPublished

Cited by6 cases

This text of 64 S.E.2d 63 (City of Douglas v. Atlantic Coast Line Railroad Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Douglas v. Atlantic Coast Line Railroad Co., 64 S.E.2d 63, 207 Ga. 690, 1951 Ga. LEXIS 515 (Ga. 1951).

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Opinion

Duckworth, Chief Justice.

1. The defendants’ demurrer to the petition of the City of Douglas to condemn land for the extension of a street and to enjoin the defendants from erecting any structure on the land involved was sustained, and this judgment is excepted to here. The charter of 1899, as amended in 1921 (Ga. L. 1921, p. 870), in conferring upon the city the power of eminent domain to widen, extend, or open streets, lanes, alleys, etc., provides that “same being done in accordance with resolutions or ordinances passed by said Mayor and Aider-men.” The petition was fatally defective in failing to allege the adoption of such a resolution or ordinance. Suburban Investment Co. v. City of Atlanta, 148 Ga. 593 (97 S. E. 542); Thomas v. City of Cairo, 206 Ga. 336 (57 S. E. 2d, 192). Since, as just ruled, no legal right to condemn was alleged, obviously, no right to enjoin erection of a structure on the land was shown. There was no error in dismissing the petition on demurrer.

2. To the petition aforesaid the defendants and particularly Atlantic Coast Line Railroad Company filed a cross-petition, seeking a permanent injunction against the City of Douglas prohibiting it from attempting to condemn the land involved. By agreement, the parties tried the cross-action on stipulated facts before the judge without a jury, and he rendered judgment granting the relief prayed. The exception to that judgment is as follows: “The plaintiff then and there excepted and now excepts to such order as being erroneous and contrary to law and assigns error on the same.” This exception under repeated rulings presents nothing for decision. Cates v. Duncan, 180 Ga. 289 (179 S. E. 121); Greenfield v. Harvey, 191 Ga. 92 (11 S. E. 2d, 776); Carpenter v. State, 194 Ga. 395 (21 S. E. 2d, 643); Lanier v. Gay, 197 Ga. 187 (28 S. E. 2d, 579).

Judgment affirmed.

All the Justices concur.

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Duckworth, Chief Justice.

1. The defendants’ demurrer to the petition of the City of Douglas to condemn land for the extension of a street and to enjoin the defendants from erecting any structure on the land involved was sustained, and this judgment is excepted to here. The charter of 1899, as amended in 1921 (Ga. L. 1921, p. 870), in conferring upon the city the power of eminent domain to widen, extend, or open streets, lanes, alleys, etc., provides that “same being done in accordance with resolutions or ordinances passed by said Mayor and Aider-men.” The petition was fatally defective in failing to allege the adoption of such a resolution or ordinance. Suburban Investment Co. v. City of Atlanta, 148 Ga. 593 (97 S. E. 542); Thomas v. City of Cairo, 206 Ga. 336 (57 S. E. 2d, 192). Since, as just ruled, no legal right to condemn was alleged, obviously, no right to enjoin erection of a structure on the land was shown. There was no error in dismissing the petition on demurrer.

2. To the petition aforesaid the defendants and particularly Atlantic Coast Line Railroad Company filed a cross-petition, seeking a permanent injunction against the City of Douglas prohibiting it from attempting to condemn the land involved. By agreement, the parties tried the cross-action on stipulated facts before the judge without a jury, and he rendered judgment granting the relief prayed. The exception to that judgment is as follows: “The plaintiff then and there excepted and now excepts to such order as being erroneous and contrary to law and assigns error on the same.” This exception under repeated rulings presents nothing for decision. Cates v. Duncan, 180 Ga. 289 (179 S. E. 121); Greenfield v. Harvey, 191 Ga. 92 (11 S. E. 2d, 776); Carpenter v. State, 194 Ga. 395 (21 S. E. 2d, 643); Lanier v. Gay, 197 Ga. 187 (28 S. E. 2d, 579).

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

64 S.E.2d 63, 207 Ga. 690, 1951 Ga. LEXIS 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-douglas-v-atlantic-coast-line-railroad-co-ga-1951.

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