2021 Georgia Code
Title 22 - Eminent Domain
Chapter 3 - Exercise of Power of Eminent Domain for Special Purposes
Article 1 - Construction, Maintenance, and Operation of Telegraph and Telephone Lines Along Railroad Rights of Way

- Similar provisions regarding exercise of power of eminent domain for purposes of constructing and operating telephone and telegraph lines along public highways or railroad rights of way, § 46-5-1.

This procedure affords due process of law to the railroad companies whose property is sought to be condemned. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554, 42 S.E. 1 (1902); Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420, 75 S.E. 471, 42 L.R.A. (n.s.) 225 (1912).

The necessity for taking private property for public use is a question for legislative determination, and the provisions relating to such taking are not, because they fail to provide for a special tribunal to pass upon such necessity, violative of the constitutional prohibition against taking the property without due process of law. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554, 42 S.E. 1 (1902).

- Although a statute authorizing exercise of eminent domain may not provide for appeal from the award of the assessors, it is not, for this reason, unconstitutional. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 112 Ga. 941, 38 S.E. 353 (1901).

Party with right to condemn has large discretion in selection of particular property to be condemned; therefore, in the absence of bad faith, the determination by the condemnor of reasonable necessity for acquiring the condemnee's land cannot be disturbed by a court on appeal. Harwell v. Georgia Power Co., 154 Ga. App. 142, 267 S.E.2d 769, aff'd, 246 Ga. 203, 269 S.E.2d 464 (1980).

Telegraph company does not acquire fee, but only easement in right of way of a railway company condemned for the purpose of constructing a telegraph line; the easement embraces land actually occupied by poles and fixtures for guy wires, the right to stretch wires on poles, and to enter upon right of way to construct and repair telegraph line. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S.E. 15, 1 Ann. Cas. 734 (1904).

- A telegraph company may condemn a right of way on and along the right of way of a railroad company, when the proposed line of telegraph will be so constructed as to produce no material interference with the railroad company's free exercise of its franchise or with the actual operation of the railroad. Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420, 75 S.E. 471, 42 L.R.A. (n.s.) 225 (1912).

Law does not contemplate that telegraph company can arbitrarily condemn both sides of railroad track for the construction of lines on both sides of the track, when the necessary wires could be strung upon poles on one side of the track. Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420, 75 S.E. 471, 42 L.R.A. (n.s.) 225 (1912).

- See Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S.E. 15, 1 Ann. Cas. 734 (1904); Western & Atl. R.R. v. Western Union Tel. Co., 138 Ga. 420, 75 S.E. 471, 42 L.R.A. (n.s.) 225 (1912).

Measure of damages in condemnation case is value of land actually taken, and the extent to which the value and use of the right of way by the railway company is diminished by its use by the telegraph company. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S.E. 15, 1 Ann. Cas. 734 (1904).

- In arriving at the value of the land actually appropriated, the general salable value of the right of way for other uses than that to which it is applied by the railway company cannot be considered; the appropriation to public use amounts to a withdrawal of the right of way from any use except that which is necessary or ancillary to the operation of the railroad. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S.E. 15, 1 Ann. Cas. 734 (1904).

- That the right of way may possess peculiar advantages and benefits to the telegraph company in the construction and maintenance of its line is not a proper element in the estimate of damages. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S.E. 15, 1 Ann. Cas. 734 (1904).

Appeal from assessors' award under former Civil Code 1895, § 4678 (see O.C.G.A. § 22-2-80) was permitted in a proceeding under Ga. L. 1898, p. 54, § 1 et seq. (see O.C.G.A. § 22-3-1 et seq.). Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S.E. 15, 1 Ann. Cas. 734 (1904).

- On appeal from the award of the assessors in a condemnation proceeding, the issue of fact for the jury is the amount of compensation to be paid for the property taken or damaged for public purposes. Atlantic Coast Line R.R. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S.E. 15, 1 Ann. Cas. 734 (1904).

- A telegraph company which has proceeded to condemn a sufficiency of the right of way of railway company for purpose of erecting a telegraph line may, pending an appeal from the award of the assessors, lawfully proceed to construct its line on the right of way after it has deposited the amount of the award in the office of the clerk of the superior court of the county where such proceedings were had. Savannah, Fla. & W. Ry. v. Postal Telegraph-Cable Co., 115 Ga. 554, 42 S.E. 1 (1902).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, § 144 et seq.

- 29A C.J.S., Eminent Domain, § 27 et seq.

- Right to and measure of compensation to owner of fee when telegraph or telephone line is erected along railroad right of way or highway, 19 A.L.R. 383.

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679.

Condemnor's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 A.L.R.4th 68.