Dougherty County v. Hamilton , 214 Ga. 644 ( 1959 )

Almand, Justice.

Curtis L. Hamilton and Evelyn W. Hamilton filed their suit in the City Court of Albany against Dougherty County, seeking to recover damages for the value of a strip of land 100 feet wide and running entirely across the east side of a 5-acre tract in Dougherty County, which they owned at the time the defendant allegedly took possession of said land without any offer of payment to the plaintiff or without any effort to condemn the same as provided by law for highway road purposes. It was further alleged that payment of the value of the property had been demanded and refused, and that the defendant is now in the process of constructing a highway on the appropriated land. The prayers were for process and for a judgment of $1,000. The defendant by special appearance filed its plea to¡ the jurisdiction, asserting that, this being a case respecting title to land, the Superior Court of Dougherty County under art. 6, sec. 4, par. 1 of the State Constitution (Code, Ann., § 2-3901) had exclusive jurisdiction to entertain the action. The special plea and the demurrers were overruled and the defendant seeks a review of these orders by writ of error. Held:

Title to land being only incidentally involved and the only relief sought being to recover, as damages, the value of the property alleged to have been taken for public purposes, the Court of Appeals and not this court has jurisdiction to- review the orders complained of. Mayor &c. of Athens v. Gamma Delta Chapter House Corp., 208 Ga. 392 (67 S. E. 2d 111); and see also, Huxford v. Southern Pine Co., 124 Ga. 181(5) (52 S. E. 439); Arnold v. Water Power & Mining Co., 147 Ga. 91 (92 S. E. 889); Colley v. Atlanta & W. P. R. Co., 156 Ga. 43 (118 S. E. 712).

Submitted January 12, 1959 Decided January 15, 1959. Eugene Cook, Attorney-General, E. J. Summerour, Lamar Murdaugh, Paul Miller, Assistant Attorneys-General, Ariel V. Conlin, Deputy Assistant Attorney-General, Leonard Farkas, for plaintiff in error. E. L. Smith, contra.

Transferred to the Court of Appeals.

All the Justices concur.