Inman v. Bulloch County , 1913 Ga. LEXIS 362 ( 1913 )

Beck, J.

(After stating the facts.) It was competent for the board of county commissioners of Bulloch County, a board created under the provisions of an act approved August 18, 1903 (Acts 1903, p. 322), by compliance with the provisions of the Civil Code, §§ 640-642, to alter the route in an old road where the alteration sought or proposed was found to be of public utility by road 'commissioners duly appointed. But before the alteration in an old rohd could be made and a new route laid out through the lands of an owner so as to make the order for the laying out of the new route effective, it was necessary that the notice required in section 642 of the Civil Code should be given. No provision in the section last referred to is made for giving applicants for the' alteration in the road any notice. In fact, in making provision for giving the notice, applicants for the proposed alteration are excepted. The applicants are presumed, of course, to take notice of the proceedings had in compliance with their application. The purpose of giving notice to other landowners through whose land the proposed alteration will pass is that they may put in their claims for damages; 'and if they fail to do this at once,, they are forever after estopped. Civil Code, § 642. The petitioner in this case, who was one •■of the applicants for the alteration, in view of the fact that a route along which she was willing for the road to be constructed was selected and marked out by the commissioners, was satisfied to have the road constructed there without compensation to her for the land taken, and without making any claim for damages. After-wards, without agreement on her part to any change in the location of the new route, the board of commissioners ordered the alteration or the new route to be laid out along and over a different strip of land' through her property from that which she had agreed to. This they could not do. They had obtained her consent to open the road through her lands along a definite, fixed route. Having obtained her consent to open the road along this route and over a particular strip of land, and the new route having been definitely fixed and marked, and she having conducted herself with referénee to' this route so marked out as to estop herself from, objecting thereto, they could not select an entirely new and different route without proceeding anew under the provisions of sections 640-642 of the Civil Code. To appoint three commissioners and have them mark out a definite route in accordance with an application for an alteration, which route was adopted by an order duly passed, and then to proceed to open a route over an entirely different strip of land, is not a compliance with the code sections above referred to, which are controlling in the matter of opening up new roads and making alterations in old ones. And a public road opened up as an alteration of an old road is void unless those sections are complied with.

The allegations of the petition showing that the board of commissioners of Bulloch County are about to open up the new route complained of along an entirely different strip of land from that which had been previously marked out by the road commissioners and agreed to by the complaining landowner, and those allegations being supported by uncontroverted evidence, the injunction should have been granted.

Judgment reversed.

All the Justices concur.