Folsom v. Gate City Terminal Co. , 128 Ga. 175 ( 1907 )

Lumpkin, J.

Most of the questions raised in this case are decided in Bridwell v. Gate City Terminal Co., 127 Ga. 520. The Civil Code, §4683, provides,' that “Upon the payment by the corporation or person seeking to condemn of the amount of the award and final judgment on appeal, such corporation or person shall become vested with such interest in the property taken as may be necessary to enable the corporation or person taking to exercise their franchise or conduct their business; and whenever the corporation or person shall cease using the property taken for the purpose of conducting their business, said property shall revert to the person from whom taken, his heirs or assigns.” This necessarily involves considering damage to the remainder of the lot from such use, including damage to such easements as that of way by an alley, or like appurtenances. And these are to be considered in the assessment where the lot is condemned. Streyer v. Georgia. Southern etc. Co., 90 Ga. 56 (3). If the easement alone is destroyed, wholly or partially, without physically taking possession of the lot itself, this would give a right to damages so inflicted. If the right of way sought to be condemned, and declared now necessary, included all or a part of a lot, we incline to think that the company could not condemn some of the land of the lot owner, lying within the right of way, and leave some of it useless and uncondemned still within the line declared necessary, hut separated from the remainder of the lot left uncondemned. If they now require up to a given line as a right of way, and proceed to condemn to that line, it would seem but just that they should do so in one proceeding, and not condemn merely a strip along such outer line, leaving a strip of the lot within uncondemned. If it appeared distinctly that the fee in the alley referred to, or a part of it, belonged to the lot owner and was really a part of his lot, only subject to use as a way, the same rule would probably apply to it. But it does not distinctly appear that the fee in the alley, or any part of it, was in the plaintiff, or whose “private alley” it was, or that he had any more right in regard to it than some kind of “interest,” or perhaps easement of way appurtenant to the land sought to be taken. The prayer of the petition was merely “that the defendant be enjoined from proceeding with said condemnation proceedings,” and for general relief...

There was no question of an illegal notice of condemnation proceedings in this case, as there was in that of Bridwell v. Gate City Terminal Co., supra.

Judgment affirmed.

Fish, C. J., absent. The other Justices concur.