1. The State Highway Department has the right to condemn private property within a municipality for State-aid road purposes; and this is true although the property may not be adjacent to an existing street which the State Highway Department has previously designated as a State-aid road, with notice of such designation given to the municipal authorities.
2. The appointment of an assessor for the condemnee was a substantial compliance with the condemnation statutes under which the condemnation proceedings were brought, and the appointment was not void for any reason assigned.
3. The condemnee is in no position to complain of the alleged disqualification of the ordinary to appoint an assessor for the condemnee because of the ordinary's relationship to the condemnee, since this fact is presumed to enure to the complainant's benefit.
4. Under the facts in this case, it does not appear that the award of the assessors was invalid because of a failure to notify the condemnee of the time and place of the hearing before the assessors.
Nos. 15684, 15702. JANUARY 7, 1947. REHEARING DENIED FEBRUARY 7, 1947. Addie Patterson brought an equitable petition in Whitefield Superior Court against the State Highway Department of Georgia, George McDonald, State Highway Director in charge of the department, J. S. Headrick, and S.W. Fariss, seeking to enjoin a condemnation proceeding instituted by the State Highway Department. The petition alleged: that McDonald is a resident of Whitefield County and Fariss and Headrick are residents of Walker County; that the plaintiff, on September 18, 1946, was served with a notice on behalf of the State Highway Department of Georgia, seeking to condemn certain lands belonging to the plaintiff; that this condemnation proceeding was brought pursuant to the Code, § 36-1104 et seq., and seeks to acquire title to a perpetual right-of-way for a State-aid road or highway; that the lands sought to be condemned are located in the City of LaFayette and do not constitute a part of an existing street in said city, but if a highway is laid out over the land sought to be condemned, it would be an entirely new street, distinct from any existing street; that the City of LaFayette has never designated or laid out any such street and no such street exists; that before any street or part of a street within a municipality can constitute a part of the State-aid road system, it is necessary that the State Highway Department designate such street as a part of the State-aid road system, and, immediately upon such designation, notify the mayor of the municipality of the street or streets so designated and the mileage thereof, which was not done prior to the institution of the condemnation proceedings; that the State Highway Department does not have the right, power, or authority to lay out, or condemn lands for, any new street in a municipality, and for these reasons the State Highway Department is proceeding to condemn the plaintiff's lands without authority of law.
The plaintiff further alleged: that, under the terms of the notice served upon her in the condemnation proceedings, she was cited to appear at 10 a. m. on September 26, 1946, to select an assessor, but she did not appear on said date and did not participate in the proceedings; that on the date designated in the notice the judge of the superior court passed an order reciting that the defendant in the condemnation proceedings had failed to appear and designate an assessor, and "the ordinary is hereby ordered to designate such assessor for her," and on the same date the ordinary made an entry *Page 862 on the proceedings designating H. S. Wood; that thereafter, on the same date, the judge of the superior court passed another order reciting that it had been made to appear that H. S. Wood was "ill and can not serve, and has refused to serve," and the ordinary was ordered to name another assessor for Patterson, and in accordance with this order the ordinary on the same date designated Arthur Adcox as an assessor; that on the following day the judge of the superior court passed the following order: "It appearing to the court that Arthur Adcox can not be contacted after effort to do so, and has failed to appear as requested by word left at his house, the ordinary is hereby directed to make another selection of assessor for Miss Addie Patterson," and on the same date the ordinary designated P. E. Hawkins, and thereafter, on the same date, the judge of the superior court passed an order reciting that "the ordinary has selected as assessor for Miss Addie Patterson, P. E. Hawkins, and the said selected assessors have selected N. A. Scott as a third assessor; it is ordered by the court that the selection of said assessor is hereby approved and they are authorized to proceed with the assessment of the value of the land sought to be condemned." It is alleged by the plaintiff that the selection of an assessor for her was null, void, and illegal because the judge of the superior court had no right, power, or authority to order the ordinary to designate an assessor; that the judge of the superior court had no right, power, or authority to determine whether a person named as an assessor had failed and refused to qualify, and the action of the judge in passing the third order directing the ordinary to name an assessor was illegal and void, because it appeared that only one day had intervened between the appointment of Adcox and the final appointment of Hawkins, and Adcox had not refused to serve but had only failed to appear after word had been left at his home; that the ordinary who made the appointment of the assessor for the plaintiff is the plaintiff's first cousin and for this reason was disqualified to act in the condemnation proceedings.
The plaintiff further alleged: that on September 28, 1946, after the appointment of a third assessor by the two previously named, the three assessors made an award, fixing the value of the land sought to be condemned; that the plaintiff had no notice or knowledge of the time fixed for hearing before the assessors; and that for all the reasons alleged the appointment of the assessors was null and void, *Page 863 and the acts and award of the assessors were illegal, null, and void.
The plaintiff further alleged that the award made by the assessors has been filed in the office of the clerk of the superior court, and unless restrained from doing so, the defendants will have the award made the judgment of the court and enter upon her lands for the purpose of constructing a highway thereon; and for these reasons irreparable damage will be done her, and she has no adequate remedy at law.
The plaintiff prayed for a temporary and permanent injunction, restraining the defendants from further prosecuting the condemnation proceedings; and that the award of the assessors be declared null and void and canceled as a cloud on the plaintiff's title.
The defendants answered, denying that the acts and award of the assessors were illegal, and filed a general demurrer and a plea to the jurisdiction.
On an interlocutory hearing, the trial court denied an injunction, and to this judgment the plaintiff excepted. The trial court sustained a motion to strike the plea to the jurisdiction, and this judgment is made the basis of a cross-bill of exceptions. 1. The first question raised by the plaintiff in error is, did the State Highway Department have the right to condemn the property in question? The trial judge, under the evidence, was authorized to find that the proposed highway had been designated as a State-aid road, and that the Mayor Pro Tem of the City of LaFayette, who was acting mayor on account of the illness of the mayor, had been notified of the exact location of the proposed highway through the City of LaFayette.
In Lee County v. Smithville, 154 Ga. 550 (115 S.E. 107), this court was dealing with the right of the State Highway Department, in conjunction with the county authorities, to condemn property located in a municipality for the purpose of constructing a State-aid road under the provisions of the act of 1919 (Ga. L. 1919, p. 242 et seq.). In that case it appeared that "the construction of said road is upon the private property of parties owning land in Smithville, and is not upon any of the streets of said town, except in crossing one street;" and that "the county did not ask the mayor *Page 864 and council of Smithville for leave to build said road upon private property therein, because it did not propose to interfere with any of the streets, roads, or highways of said town, under its jurisdiction." This court in that case said: "The truth is, that the streets of the towns and cities belong to the State as do the county public roads. The legislature has given to the municipalities temporary control over the streets within their borders, which it can wholly withdraw or modify at will. So we reach the conclusion, that the State Highway Department, co-operating with the county commissioners of Lee County, can build this public road through the town of Smithville without its consent and against its will."
It follows that the right of the State Highway Department, under the terms of the act of 1919, supra, to condemn the property in question for State-aid road purposes is clear. SeeAppleby v. Holder, 166 Ga. 512 (143 S.E. 596); Jackson v. State Highway Department, 164 Ga. 434 (138 S.E. 847).
The contention is made that the rule laid down in Lee County v. Smithville, supra, is not now applicable because of the provisions of the act of 1937 (Ga. L. 1937, p. 1081). The portion of this act relied upon reads as follows: "The State Highway Board shall determine and designate which of said streets, or parts thereof, shall constitute a part of the State-aid system of roads in this State for the purposes of construction and maintenance of the same; and, immediately upon such determination and designation, such board shall notify the mayor, or other like chief executive, of each municipality of the total amount of the mileage of streets within such municipality so designated as a part of the State-aid system and what streets, or parts thereof, were so designated, and annually thereafter by the first day of January such information shall be likewise furnished." It is contended that — since the quoted portion of the 1937 act makes provision for the designation of streets in a municipality as a part of the State-aid road system, and for notice to the city authorities of the total mileage of streets so designated — there is no authority of law for the designation of a State-aid road through a city except along existing streets, and for that reason property that is not now adjacent to any street can not be condemned for the construction of a State-aid road. It is contended that a new road, as a part of a State-aid road, can not be laid out or condemned within the limits of a municipality. We *Page 865 can not agree with this construction of the 1937 act. We think that the purpose of the provision of that act, above quoted, was to give to the city authorities notice of what streets it was proposed to take over as a part of the State-aid road system. We do not think that it purports to deal with a situation where the State-aid road or a part thereof within the limits of a municipality is located on private property and is not owned or controlled in any manner by the municipality. Neither do we think that the act of 1937 was intended to limit the general power of the Highway Department to condemn private property for State-aid road purposes.
2. The plaintiff in error contends that the appointment of an assessor by the ordinary to represent her was not a legal appointment, for the reason that the law requires the ordinary to perform this duty upon notice from the condemner in cases where the condemnee fails or refuses to appoint an assessor, and in this case the appointment was made by the ordinary upon order of the judge of the superior court. In making this contention, the plaintiff in error relies upon the provisions of the Code, § 36-401, which provides, in part, that the ordinary, upon notification by the condemnor that the condemnee has failed to name an assessor, shall name an assessor for the condemnee; and if the ordinary is disqualified, the clerk of the superior court shall make the selection.
The condemnation proceeding in this case, as alleged in the plaintiff's petition for injunction, was brought under the act of 1914. Code, § 36-1104 et seq. By this act ( § 36-1109), it is provided: "On the day named in the rule, or at any other time to which the hearing may be continued, the court, having first passed on and adjudged all questions touching service and notice, shall, after hearing from all persons responding and desiring to be heard, make such order as to the appointment of assessors as shall conform most nearly to the provisions of Chapters 36-2 to 36-6 and give all persons interested equal rights in the selection thereof." It is further provided (Code, § 36-1112): "All questions of law arising upon the pleadings or in any other way arising from the cause may be passed on by the presiding judge, who may, from time to time, in term or vacation, make such orders and give such directions as are necessary to speed the cause, and as may be consistent with justice and due process of law."
The orders passed by the judge of the superior court, directing *Page 866 the ordinary to name an assessor for the condemnee, who had failed to appear and name an assessor, were a substantial compliance with the provisions of the condemnation statutes under which the condemner was proceeding; and the selection of an assessor for the condemnee, in the manner shown by the pleadings and the evidence, was not invalid for any reason assigned.
3. It is contended by the plaintiff in error that the ordinary was disqualified to appoint an assessor for the reason that he is a first cousin of the plaintiff in error. Since this fact is presumed to enure to her benefit, she is in no position to complain. See Wright v. Smith, 104 Ga. 174 (30 S.E. 651);Sikes v. State, 105 Ga. 592 (31 S.E. 567).
4. The final contention of the plaintiff in error is that the award of the assessors is void for the reason that she was not notified of the time and place of the hearing before the assessors.
The Code, § 36-501, reads as follows: "If by reason of delay in appointing assessors, or other cause, the hearing can not be had at the time fixed in the original notice, the assessors shall fix the time for the hearing and notify both parties in writing of the time and place of the hearing."
It appears from the record that the plaintiff in error did not appear at the time and place named in the rule nisi, issued at the time the condemnation proceedings were filed. One of her attorneys of record in this case was present. It further appears that "when he [her attorney] was asked if Addie Patterson would name an assessor, or if he would name one for her as her attorney, he . . answered that Addie Patterson would not name an assessor, and that he would not name one for her, that he was present to `watch the proceedings.'" Two of the assessors testified "that they understood from this statement by the landowner's lawyer that she would take no part in the proceedings, or the assessment of the damage; but following this they and the other assessors made every reasonable effort to get in contact with the landowner so as to advise her of the hearing, postponed the hearing until the 28th day of September, 1946, in order to give her additional time to be present at the hearing if she desired. . . Affiants made several unsuccessful efforts to communicate with Addie Patterson, the landowner, so as to advise her of the hearing at which the damages would be assessed. They called at the office where she worked, and they called her home, but were unable to get any response. They *Page 867 postponed the hearing until the following day, when they again undertook to contact her, the said Addie Patterson, but failed. Affiants, together with N. A. Scott, the third assessor, went to the home of the landowner and proceeded to go over the right-of-way sought to be condemned, which is a very short distance and in plain view of the home of the landowner, and there proceeded to assess the damage."
The trial judge was authorized to find from the evidence that the plaintiff in error purposely avoided the efforts of the assessors to notify her of the date and time of the hearing. Under the facts in this case, we do not think that the award should be declared void for failure to give the notice required in the Code, § 36-501, supra.
Judgment affirmed on the main bill of exceptions; cross-billdismissed. All the Justices concur, except Duckworth, P. J., whodissents.