Brown v. Smith , 147 Ga. 483 ( 1917 )

Beck, P. J.

We are of the opinion that the court did not err in dismissing the action. There is nothing in the petition that shows that the county authorities are about to abandon the public road which now passes between the property of the plaintiff and the railroad, nor could the county authorities abandon or discontinue this existing and established public road without taking the steps provided by law for such an act; and should they attempt to do so, the petitioner could institute proceedings to compel them to maintain the road as it now exists until it is changed according to law. Consequently it does not appear that the petitioner will be injured by the opening of the new road from the point where it diverges from the established road into the town of Bochelle; and the opening of this road can not bb enjoined on the- ground that it damages his property without compensation, or that it is a taking of his property.

In the argument counsel for the plaintiff insists that as a citizen and taxpayer he is entitled to injunction against the opening of a new road without notice. We do not think that this petition could be construed as a bill brought by a citizen and taxpayer, although it is in general terms alleged that the petitioner is a citizen and taxpayer of the county; for there is no attempt to show that as a taxpayer he would be injured and damaged. It does not appear that the defendants are about to pay out any of the county’s money for the strip of land over which the proposed new road from the point of divergence above referred to into the City of Rochelle will pass; nor is it alleged that it will he necessary to condemn the strip of land. If any of the county’s money was about to be paid out -illegally, the petitioner, in order to get the benefit of that fact in aid of his contentions, should have shown it by proper allegations. We should not by construction or amplification aid the pleader in making a case as a taxpayer.

We are of the opinion, therefore, that the petition showed no damage nor injury to the petitioner either as landowner or as a taxpayer, and that the petition was properly dismissed.

Judgment affirmed.

All the Justices concur, except George, J., disqualified.