Marks v. State Highway Department

146 S.E. 838, 167 Ga. 792, 1929 Ga. LEXIS 37

• Court: Supreme Court of Georgia
• Decided: January 19, 1929
• Docket: Nos. 6673, 6703
• Status: Published

Opinions

Per Curiam.

The exceptions in this case are to parts of the judgment rendered on the application for an interlocutory injunction. The exceptions here presented arise out of the same case as those decided in State Highway Department v. Marks, 167 Ga. 397 (145 S. E. 866). The decision then rendered, as to the issues raised, is the law of the ease, and the issues are there stated.

1. Marks et al. complain that the court erred in refusing to enjoin the “relocation” of the road between Augusta and Waynesboro, and thereby substituting what is called the “Peach Orchard Route” for the “McBean Route.” The act of 1921 (Ga. L. 1921, p. 199) provides “that the said Highway Department in taking over said roads is not bound to the right of way of the road-beds as located on January 1, 1922, but shall have the right to resurvey and relocate said road-bed and right of way, and it shall be the duty of the county or counties in which resurveys and relocations are made to furnish the right of way or the relocation and resurvey free of charge to the.said Highway Department. Provided, that in relocating any road or right of way the State Highway Department shall confer with the ordinary or county commissioners, as the case may be, and give due- consideration to their wishes; but in case of disagreement, the judgment of the State Highway Board shall prevail.” To relocate is the same thing as to locate anew. The power to relocate the road-bed of an existing road does not include the power of establishing a new road, and of abandoning entirely the existing road. The power to resurvey and relocate the road-bed and right of way of an old road does not confer the power to lay out an entirely new road. “The authority to relocate anew includes the authority to make some departure from the old or existing” road. Cambridge v. Middlesex County, 167 Mass. 137 (44 N. E. 1089). The word “relocate,” without addition or qualification, means to locate again, and implies a preservation of the identity of the way without material change. Relocating is not intended to be used as a method of making important changes in a way. 29 C. J. 517, § 225, 2, note 96. The above power granted to the State Highway Department to resurvey and relocate the road-bed and right of way of a road taken over by it, does not give to that body the authority to wholly abandon the road taken over, and to build an entirely new road. The power of relocation of a road does not confer the power of its abolition. The evidence demands a finding that the- State Highway Department proposed to build a new interconnecting county-site road 25 or 30 miles' in length, and to abandon the existing interconnecting county-site road which they had previously designated as such and had taken over its construction and maintenance for a number of years. This they can not do, especially under the provisions of the highway act, which requires them first to designate and take over the maintenance of only interconnecting county-site roads before building other roads. The question whether the State Highway Board could erect a new road as a post-road is not involved, for the reason that they are undertaking to abandon the existing interconnecting county-site road between Augusta and Waynesboro, and to substitute in its place a new interconnecting county-site road.

2. The questions raised in the cross-bill of exceptions are controlled by the ruling in the case of the State Highway Department of Georgia v. Marks, supra.

3. The court erred in not enjoining the State Highway Department as prayed.

Judgment rev&rsed on main bill of exceptions; affirmed on cross-bill.

All the Justices concur, except Beck, P. J., and Atkinson, J.