The Georgia and Alabama Railway, a corporation,, brought its petition against the Garbutt Lumber Company, a partnership, in which it alleged that the defendant was seeking to condemn a right of way for a tramroad across the track of the plaintiff at a designated point. It was alleged that the defendant was seeking to condemn, not for any public, but for a purely private purpose, and that there was no law of Georgia by which the defendant could exercise the right to take or damage the property of the plaintiff for that purpose. Attached to the 'petition as an exhibit was a notice to the plaintiff, signed by the defendant, that, in pursuance of the provisions of law contained in the Civil Code, §§4657 et seq., it desired to condemn a right of way for its tramroad across the track of the
1. One who owns a sawmill and is engaged in preparing lumber for market is engaged in a business in which the public is in no way interested, and a business which from its very nature is a purely private enterprise and necessarily entered into for the purpose of private pecuniary ga,in. Loughbridge v. Harris, 42 Ga. 500. The fact that a railway is necessary in order to make the enterprise successful does not change the business from one of a private nature to one in which the public is interested. The defendant admits in its answer that its railroad is a private one. It is not pretended that it was constructed for the use of the public, nor that it is used or to be used in hauling for the public. It came into existence simply as an incident to the private business of the owner, and has been, and is, to be operated as such. The answer of the defendant, when construed in the most favorable light for it, can not be held to estab. lish that its sawmill was erected, or its railroad constructed or maintained and operated for any other purpose than that of
2. The method of condemnation of property and assessment of damages to be followed in all cases where corporations or persons are authorized to take or damage private property for public purposes, except where such property is taken for the purpose of laying out public roads or private ways, is prescribed in the Civil Code, §§4657 et seq. The provisions of law just' referred to do not contain any grant of power to any corporation or person to exercise the right of eminent domain, but simply provide how property may be condemned, and the damages assessed when the right to do so is derived from any lawful statute. The method thus provided is limited in terms to cases where authority is given to take or damage private property for public purposes. As the defendant in the present case is not a person or corporation authorized to take or damage private property for public purposes, the method provided in these sections is not at all applicable and can not be used in any way whatever, as the business in which the defendant is engaged is not devoted to a public purpose. This was a sufficient reason to enjoin the condemnation proceedings sought to be instituted by the defendant.
3. Section 2219 of the Civil Code, as amended by the act of November 22, 1899, reads as follows : “Any railroad company heretofore or hereafter chartered by the legislature of this State, and also, any person or persons or company owning or operating a public or private railroad in this State, when necessary to reach minerals, timber, or other materials, shall have the right to cross any other railroáds heretofore or hereafter built or to be built in this State, upon the following terms: they shall be allowed to cross at grade points, or at any other point where the same shall not obstruct the other road, and may be allowed to cross by a tunnel or bridge, if necessary, said tunnel or bridge, being absolutely secure.” Acts 1899, p. 31. The defendant claims that it has authority to exercise the right of eminent domain under the provisions of the act just quoted, which declares that a private railroad in this State, when nec
4. The defendant contended that it bad a right to condemn a right of way across the tracks of the plaintiff under the provisions of the Political Code, §§ 658 et seq. The sections just cited provide that any person or corporation desiring to build a tramroad to connect with a waterway, for the purpose of transporting lumber, naval stores, and timber by means of the same, may make application in writing to the county authorities of the county in which the tramroad is to be located; and after such application is filed the proceedings thereafter shall be the same as provided in the code for condemning property, except that the strip of land to be used for such purpose shall not exceed fifteen feet in width. There is nothing in the notice served upon the plaintiff in the present case to indicate that the defendant intended to proceed under the law just referred to. On the contrary, it is apparent from the notice that the defendant had no such intention, for the simple reason that the law just referred to limited the strip of land authorized to be taken to fifteen feet, and the notice in the present case distinctly provided for condemnation of a strip of twenty feet.
Judgment affirmed.