Trustees Atlanta University v. City of Atlanta , 93 Ga. 468 ( 1893 )

Bleckley, Chief Justice.

1. One of the charter powers given by statute to the City of Atlanta is “to open, lay out, widen, straighten, or to otherwise change streets, alleys and squares in said city.” Acts of 1874, p. 131; City Code, §60. This grant is comprehensive enough to embrace the alteration of a street in any respect, whether on, below or above the surface of the earth. And the power to open streets embraces the power to keep them open, not only at the surface but over and above the same indefinitely, or, at all events, to such height as may be either necessary or reasonably desirable for all the purposes of a street, both with reference to its use by the general public and to its use locally by those residing or having property adjacent thereto. A street is not like a tunnel in the air, having its base on or in the ground and mounting upward to a definite height, but is more like an open cut through the air from the ground up to the sky or to an indefinite elevation. Under the grant of power above recited, the city authorities may remove a bridge spanning the street and prevent the erection of any other at the same place or elsewhere, thus opening and keeping open the aerial space which is no less a part of the street than is the space occupied by it on or in the ground. To do all this, however, as against any vested right which the Atlanta University may have to maintain one or more bridges across the street in question to facilitate passage from its property abutting upon one side of the street to its property abutting upon the other side, would involve the condemnation of such right and the payment of adequate compensation for this appropriation of private property. Of course the compensation would, not be adequate unless .it comprehended not only the value of the right but also the value of the structure removed. The condemnation and compensation would have to embrace everything taken, though the city would not be obliged to take the whole right but might take the present bridge alone, together with the right of maintaining it, leaving the right of the university to erect and maintain bridges elsewhere over the street unaffected. It is contended that because the right of the university to have and maintain the existing bridge and to erect others is grounded upon a contract heretofore made by the university with the city, in which the latter fully recognized the right and agreed that it might be perpetual, this contract is sacred and its obligation would be impaired by the appropriation now contemplated. We think this contention is unsound-There is no inconsistency between a grant in its terms perpetual and a subsequent resumption of the property granted, this resumption being made for public use and in the exercise of the right of eminent domain. The State itself could not grant an easement which would not be subject to resumption in the exercise of this right? and certainly the city could not. It is no revocation or violation of the grant under which private property is held to take it for public use, on making adequate compensation to the owner. On the contrary, the proceeding to condemn and take, if it has self-consistency, concedes the sacredness of the grant and the creation thereby of all the attributes of ownership which can arise by inviolable contract. Reduced to its essence, a constitutional exercise of the right of eminent domain is not deprivation of property but a compulsory exchange of one kind of property for another, or rather a compulsory sale of property for money, an exchange of equivalent values. The right of the university, granting it to exist as claimed, is an easement, — a servitude to which the street is subject, and is realty as distinguishable from personal proj>erty. This easement, in whole or in part, is subject to be taken for the public use at the will of the State. The State, by its legislature, has conferred upon the City of Atlanta the power to condemn and make compensation for private property for municipal purposes, and as above shown, has granted power to open, lay out, widen, straighten or to otherwise change streets. We think the power of condemnation is comprehensive enough to embrace any realty which may be needful for appropriation by the city in opening, laying out, widening, straightening or otherwise changing any streets within the city, the language of the charter of 1874, section 60 (supra), being as follows: “The said mayor and general council shall have full power and authority to open, lay out, to widen, straighten or otherwise change streets, alleys and squares in the said City of Atlanta. Whenever the said mayor- and general council shall exercise the power above delegated, they shall appoint two freeholders, and the owners of said lots fronting on said streets or alleys shall, on five days’ notice, appoint two freeholders, who shall proceed to assess the damages sustained or the advantages derived by the owner or owners of said lots in consequence of the opening, widening, straightening or otherwise changing said streets or alleys, and in case said assessors cannot agree, they shall select a fifth freeholder; the said assessors to take an oath that they will faithfully discharge their duties, and either party to have the right to enter an appeal to the superior court of Fulton county within ten days from the rendition of said award.” Subsequent amendments of the charter, while they vary somewhat the' details of the procedure, do not restrict the power of condemnation itself. On the contrary, the act of August 21st, 1891 (Acts of 1890-1, vol. 2, p.- 449), extends the power so as to embrace “lands for sites for the erection of public buildings . . for parks and for other public purposes.”

The contention of the city in its answer and in' the argument made here by its counsel, to the effect that the university had a mere license but no right to bridge the street, is inconsistent with the condemnation proceedings which the city itself inaugurated, and is therefore entitled to no consideration in the present case, whatever would be its force under other circumstances. If the city intended to treat its contract of 1872 with the university as having the force only of a mere license subject to revocation, it should not have appointed assessors to act in the condemnation of the property rights of the' university in the privilege heretofore exercised by the university in bridging the street, and invited the university to unite with itself in conducting the condemnation proceedings. By its own conduct the city has estopped itself, so far as this case is concerned, from denying the existence of the right which it sought to have appraised and condemned.

2. One ground upon which an injunction is sought by the university against the condemnation proceedings is the want of sufficient certainty in the latter. This question is to be tested by the resolution of the mayor and general council, adopted March 7th, 1892. That resolution is in these terms: “ Whereas the mayor and general council, by action adopted December 24th, 1891, adopted a report of the joint committee on streets and bridges, recommending that the Atlanta University be not allowed to erect a bridge over Hunter street, and that condemnation proceedings be had to exhaust whatever property rights the Atlanta University has in the roadway of Hunter street or in the privilege heretofore exercised of 'bridging Hunter street within its grounds : therefore resolved, that George W. Parrott and Andrew J. West are hereby appointed assessors on the part of the City of Atlanta to act in the condemnation of the property rights of the Atlanta University in the roadway of Hunter street and in the privilege heretofore exercised in bridging said street. Resolved further, that the city clerk give the notice usual in such cases to the authorities of the Atlanta University, and that further proceedings be had in conformity to law.” As to the roadway of Hunter street this resolution is too indefinite and uncertain. There is nothing to indicate the nature, extent or exercise of any right of the university in the roadway of the street. The thing to be assessed is therefore not pointed out, and no fact or circumstance is referred to to identify or define it. The assessors could not appraise it without first ascertaining what it was, and they are furnished with no mark or attribute by the aid of which to ascertain its nature or extent. In order to condemn to public use such an anomaly as the right of a private corporation in the roadway of a public street, there ought to be some description which would be available for identification. Condemnation proceedings are in their nature proceedings to seize and take. They may be analogized to a warrant to capture something, and surely a warrant to seize'whatever property rights the Atlanta Universityhas in the roadway of Hunter street would be too vague to enable an officer to execute it. As to the privilege heretofore exercised by bridging Hunter street within the grounds of the university, we think the resolution is sufficiently certain and definite. We understand from the record that the bridge erected by the university is there upon the ground to show for itself. There was something by which to measure the property right exercised by the university in having and maintaining this bridge. Nothing is left uncertain except the duration of the right in point of time; and as no limit in that respect is indicated or suggested, the fair presumption would be that the right was one to be enjoyed in perpetuity. No less estate in the easement being-expressed, an estate in fee therein should be understood, in harmony with the principle of conveyancing established by statute in Georgia and expressed in §2248 of the code. The resolution, it will be observed, makes no reference to the right of bridging the street elsewhere than at the particular location of the existing bridge. Condemnation of the privilege as heretofore exercised would leave untouched any privilege which the university might have to place and maintain other bridges at other sites. Our conclusion is, that the condemnation proceedings were legal and sufficient relatively to the one object of condemning the property rights of the university in the privilege heretofore exercised by it in bridging the street; and inasmuch as the appropriation of these rights would involve the destruction and discontinuance of the bridge itself, the value of the bridge would have to be included in making compensation for the property rights condemned.

3. All that remains is to determine whether the injunction prayed for should or should not have been granted. If what we have held above is oorrect, there is no doubt that an injunction was properly denied as to the bridge privilege, for it was not needed as to that part of the privilege not embraced in the resolution, and the petitioners had no right to it as to the part which was so embraced. It would not have been error, perhaps, to grant an injunction as to the property rights of the university in the roadway of Hunter street, but as the resolution of the mayor and general council was simply nugatory in respect to these rights, no injunction as to them was necessary. We thus see our way to an affirmance of the judgment as a whole.

Judgment affirmed.