Stribbling v. Georgia Railway & Power Co. , 139 Ga. 676 ( 1913 )

Lumpkin, J.

(After stating the foregoing facts.)

1. The motion to dismiss the writ of error, on the ground that since the injunction was refused, and with no supersedeas granted, evérything has been done against which injunction was prayed, must be denied. The rule on this subject is clearly stated in Tuells v. Torras, 113 Ga. 691 (39 S. E. 455), thus: “If the judge refuses to grant an injunction to prevent the commission of a given act, and the refusal to grant the injunction is brought to this court, no supersedeas of the judgment having been obtained, and it appears to the satisfaction of the court, by uncontroverted evidence, that the act sought to be enjoined has been completed, the writ of error will be dismissed. If an issue of fact is raised as to this matter between the parties to the case, the writ of error will no't be dismissed.” And again: “"When it is shown prima facie to the satisfaction of this court that the act sought to be enjoined has been completed, and, in response to the motion to dismiss, the plaintiff either admits the existence of the facts as claimed by the defendant in error, dr fails to deny the existence of the same, the writ of error will be dismissed. But when the existence of the fact is in any way denied, either by affidavit of the party or his counsel, or by statement of counsel in open court, the motion to dismiss will be overruled.”

In the case before us the defendant in error made a prima facie showing that everything had been done against which injunction was prayed. But the counter-showing tended to prove that everything against which injunction was prayed had not been fully completed. As to the attempted assessment since the signing of the bill of exceptions, the evidence seriously attacks its validity, both because of want of any statutory authority therefor and also because of the manner in which it was sought to be made. If it was invalid, this might furnish ground for an additional prayer for injunction, but, in view of the statements and counter-statements, it would hardly be ground for dismissing the writ of error. Under the briefs and affidavits, the plaintiffs will not be compelled, by dismissal of their writ of error, to waive the contention that the attempted assessment was void, and submit to it as being valid by appealing from it or receiving the amount awarded. This case does not fall within any of those relied on by counsel for defendant in error. The last case on the subject is that of Moody v. Georgia Railway & Power Co., ante, 102 (76 S. E. 857), where other cases are cited. There (as appears from the record on file) an injunction was' sought to restrain the company from condemning a right of way or easement over certain lots, not on the ground that any mill or factory was involved and that there was no authority to condemn under the statute, but because of an alleged arbitrary and unnecessary location, and damage especially to a hotel property. The injunction was denied, and exception was taken. In this court the case was submitted on briefs, and a motion to dismiss the writ of error was made on the ground that everything had been already done1 against which injunction was prayed. An affidavit and certificate of the clerk were filed in support of the motion. When this court reached the case for consideration, after examining the affidavit and certificate, a rule was issued requiring the plaintiff in error to show cause why the writ of error should not be dismissed. At the time when the rule was returnable no response to it was made, and there was no traverse or denial of the facts stated in the affidavit and certificate. The writ of error was accordingly dismissed. The distinction between the two cases is apparent.

2. There was conflicting evidence in the case, but the presiding judge did not base his denial of an injunction upon the facts in controversy,, nor did he pass a general order refusing it. He expressly stated in his order that he had concluded that he had “no discretion in the premises,” thus negativing any discretionary finding on conflicting evidence. The reason urged in this court in support of this statement that the judge had no discretion, but was obliged to deny the injunction, was that the exception from the right of condemnation by corporations constructing plants for generating .electricity for supplying light, heat, or power to the public, contained in the Civil Code, § 5242, did not apply to a mill or factory operated by steam, but only to one in operation on a watercourse. Sections 5240 to 5242 were codified from the act of 1897. Section 5240 is as follows: “Any corporation or individual owning or controlling any water-power in this State, or location for steam plant hereinafter mentioned, and operating or constructing or preparing to construct thereon a plant or works for generating electricity by water or steam-power, to be used for the purpose of lighting towns or cities, or supplying motive power to railroads or street-car lines, or supplying light, heat, or power to the public, shall have the right to purchase, lease,'or condemn rights-of-way or other easements upon the lands of others in order to run lines of wires, maintain dams, flow-back water, or for other uses necessary to said purposes, upon first paying just compensation to the owners of the land to be affected.” Section 5242 is as follows: “The power -given under the two preceding sections shall not be used to interfere with any mill or factory actually in operation.” It will be observed that the first section quoted confers the right of condemnation, not only on persons owning or controlling “any waterpower in this State,” but also on those owning or controlling a “location for steam plant hereinafter mentioned,” and operating or constructing or preparing to construct thereon “a plant or works for generating electricity by water or steam-power,” to be used as there described. And by the second section it is declared that the power given shall not be used to interfere with,“any mill or factory actually in operation.” It has frequently been held that acts conferring powers of this character upon individuals or corporations, being in derogation of common right, are to be strictly construed. Carr v. Georgia Railroad &c. Co., 1 Ga. 524; Young v. McKenzie, 3 Ga. 31 (3), 40; Justices of the Inferior Court v. Griffin &c. Plank Road Co., 9 Ga. 475; Alabama Great Southern Railroad v. Gilbert, 71 Ga. 591; Frank v. City of Atlanta, 72 Ga. 428 (2), 432. No good reason is suggested to us for holding that, in conferring the power of condemnation, persons operating plants either by water or steam-power are included, but, m protecting other mills or factories in actual operation, the legislature protected only those operated by water-power. There is nothing in the act to indicate that the legislative purpose to protect mills and factories in actual operation was limited to those run by water. The language is broad enough to include both classes; and there is nothing to show that the legislature meant less.

The decision in the case of Nolan v. Central Georgia Power Co., 134 Ga. 201 (67 S. E. 656), does not conflict with this ruling. The question decided in that case, in the second headnote, was whether the power to condemn land to “flow-back water,” conferred by the act of 1897 (Civil Code, § 5240 et seq.), included the right to condemn lands which might contain a water-power not in actual use. The question being considered was stated on page 203. In discussing this point in the opinion, it was said (referring to what is now § 5242 of the Civil Code) r “This section would be without meaning or applicability unless the act intended to give the power to back water, except where it interfered with a mill or factory in actual operation.” “Applicability” to what? Palpably to the facts of the case being considered, or similar circumstances; not to some entirely different case, or imaginary circumstances wholly irrelevant to the case then in hand. Language of a discussion must be considered in the light of the question being discussed, and a sentence should not be wrenched from its context and used as proof of a wholly different proposition.

3. Much of the brief of counsel for defendant in error was devoted to contentions that the evidence showed that the line of towers and the wires were not near enough to the machinery of the plaintiffs to cause interference therewith; that one who erects a mill with knowledge and in the face of an approaching public improvement, not bona fide, but for the purpose of obstructing or preventing condemnation, is not entitled to the benefit of the statutory exemption; and that a person could not, after ascertaining that a line of wires would pass over his property, remove a portable mill from another part of it so as to occupy the proposed right of way of the line about to be erected, and obstruct it, and then obtain an injunction to restrain interference with such a mill. Without determining the questions of law or fact involved in these contentions, it is sufficient to say again that the presiding judge evidently did not base his judgment upon them, or upon- the conflicting evidence, but upon the theory that he had “no discretion in the premises.” As he determined the ease on an erroneous view of the law, binding him, as he apparently thought, upon a single point, the case is returned with direction that it be reheard upon its merits.

Judgment reversed, with direction.

All the Justices concur.