King v. City of McCaysville , 198 Ga. 829 ( 1945 )

1. The amendment to the charter of the City of McCaysville, enacted in 1941 (Ga. L. 1941, p. 1596), merely re-enacted in the main the provisions of the charter granted by the General Assembly in 1920 (Ga. L. 1920, p. 1236), as amended in 1922 (Ga. L. 1922, p. 909), and in 1935 (Ga. L. 1935, p. 1121); and the act first above referred to brought about no such repeal of the charter, nor material change in the form of government as contemplated by the terms of the Code, § 69-101.

2. In the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken. Savannah Ry. Co. v. Postal Telegraph-Cable Co., 112 Ga. 941 (38 S.E. 353): s. c. 115 Ga. 554 (42 S.E. 1); Gardner v. Ga. R. Bkg. Co., 117 Ga. 522 (43 S.E. 863). Nothing in Sheppard v. Edison, 161 Ga. 907 (132 S.E. 218), requires a contrary ruling. See the same case on its second appearance in this court. Sheppard v. Edison, 166 Ga. 111 (9) (142 S.E. 535).

3. A landowner can not prevent the taking of his property for public purposes merely because there is other property which might have been suitable for the purpose. 18 Am. Jur., 735, § 108.

4. That the landowner was furnishing to several persons water from a spring on the premises sought to be condemned, affords no reason why the property should not be condemned for a larger use by the public, it not appearing that the property was already devoted to a public use.

5. The court did not err in sustaining the demurrer to the petition.

Judgment affirmed. All the Justices concur, except Wyatt, J., absent because of illness.

No. 15087. FEBRUARY 7, 1945. The City of McCaysville gave Mrs. M. C. King notice of its intention to condemn certain property, the principal thing sought to be condemned being a certain spring. Following service of the notice, Mrs. King filed a petition in the superior court of Fannin County, seeking to enjoin the city from condemning any of the property referred to in the notice upon the following grounds: (1) Because of the alleged illegality and unconstitutionality of the act of the General Assembly of 1941, reincorporating the City of McCaysville materially changing the form of government without complying with the law as embodied in the Code, § 69-101, requiring a referendum, there is no municipal power to condemn; it being insisted that the city is proceeding by mere defacto officers without authority to institute and maintain condemnation proceedings. (2) The property sought to be condemned is exempt from condemnation because it is already devoted to a public use. (3) There is no necessity for condemnation proceedings because there are numerous other springs located in the vicinity of the city, which could be condemned or purchased for the purpose of supplying water for the municipality. The city insisted by demurrer: (1) That the act of 1941, reincorporating the City of McCaysville, was not such an act as required a referendum under the provisions of the general law as embraced in the Code, § 69-101; but that said act, while repealing former inconsistent provisions and charter powers of the municipality, merely re-enacted the same general charter provisions, without any substantial change; and that in a legal sense the act neither "repealed a charter," "materially changed the form of government," nor "substituted officers for municipal control other than those in office." (2) That, irrespective of the validity of the act of 1941, there already existed a municipality known as the City of McCaysville, which had a continuous existence since the year 1904; that the last previous charter (Ga. L. 1920, p. 1236, sec. 41) gave the city authority to condemn water rights outside the city limits, and an amendment (Ga. L. 1922, p. 909) provided for the election of the same city officers at the same time as the act of 1941; also, an amendment (Ga. L. 1935, p. 1121, sec. 4) provided for the election of the same officers at the same time and for the same term as the act of 1941; and that, under either of the above laws or amendments, the present officers were, at the time of the filing of the suit, the legally elected officers of a legally established municipality. (3) That the allegations of fact in the petition are insufficient to show that the plaintiff's property is exempt from condemnation because already devoted to a public use. And (4) that the allegations of the petition are insufficient to show the lack of necessity for condemnation of the property in question. The court sustained the demurrer upon each and every ground, but did provide in his order that the city could not proceed with the condemnation of the property until certain persons, referred to in the petition as holding certain easements, were made parties to the case. Mrs. King excepted.