# Petition for Writ of Certiorari — Crisp County v. Seaboard Air Line Railroad (No. 557) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0728%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text _—— 7 a ° . “NOV 30) 1950 en Court of a United GALES. prowins Clerk OCTOBER TERM, 1960 § ~ _ No. Do0¢ COUNTY OF CRISP ‘OF THE STATE OF GEORGIA, "ET AL., | Petitioners, versus SEABOARD AIR LINE RAILROAD COMPANY, ‘Respondent. 6 - ———s PETITION FOR WRIT OF CERTIORARI TO THE - UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AND BRIEF IN SUPPORT THERE. OF. | 3 H. H. PERRY, JR., P. O. Address: _ ‘ “P.O. Box 747, Albany, Geérgia. GRAYDON REDDICK, GEORGE WRIGHT, ; Attorneys tor Petitioner. P. O. Address: ) | Cordele, Georgia. ¥ ee rn eee 3 . Selle eo INDEX. Page SUMMARY STATEMENT QF THE M ATTER IN- : VOLVED ..:.. EE Cae Coy i eae lca aces 6 4e } dy Opinion of the Circuit Court of a ] ( 2) Jurisdictional Matters »...... Prag Soak oer 2 (3) Questions Presented For Review -.......... 2 *(4) Statutes Involved ............ Se Eee 4 (5) Statement of the Case ............0....... 7 5B Fase ee path, Shek ah ARSE cae ae, CRP et a ne 7 Construction ef Section 10 of the Federal Power Sea ee ee races eae eden ee eceseanwes i The. Validity of the Contract .....¢..... peer 16 ES ae eeo ae Nercceactr bees hooends Sree APPENDIX ....... Ceettweter sees tes ecieeerae tk ae - : Pe —_ - Re rere A ae ee woe ae GRU occ. re ee oo oe LIST OF AUTHORITIES: Cases: | Albany Bottling serait v. Watson. 103 Ga. SE ee oe cue oa eoag He y's B as 18 - > Alabama Power Compans vs. Smith. 229 Ala. 105, 155. i scape castes tuna ee eaen _ 15° Arnold v. Walt 05 Ga. 606, 54 S.E. 2d 424.. -. 20 Bibb County vs. Green. 42 Ga. App. 552 (156 . ES sb Lp isbdi e ds Glial n wibs'y ui cn ks a ache’ 17 City of Atlanta vs. Due. 42 Ga. App. 797-804 57 IEE, RA 5, SRE cea tea an 17 a au ze F tf LIST OF “AUTHORITIES— (Continued) . , ; Page Cases—- ( Continued) . City Council of Augusta VS. hse 37 Ga. App. ae eee rere ee City Council of Augusta v. ‘Richmond Co., 178 ROOD 6 ee Fs Se rem ew ne sas wan ees. 23 City Council of Dawson v. Dawson Waterworks _ Co., 107 Ga, 696 (1899) ................. ~ 13 City Council of Dawson v. Dawson _ Waterworks | Company, 106 Ga.: 696 (32 SE 907) ...2. 3 Decatur County v. Praytor Inc. Co.. 163 Ga. 929 Shot. REAL. oa ye eS - 13. Federal Power Commission: vs, State of Oregon, ‘349 U. S. 435, 75 S. Ct. 832. 99 L. Ed. 1215 First Iowa Hydro-Electric Co-operative ° vs. Federal Power Commission, 328 U. S. 152, 66 S. Ct. 906, 90. L. Ed. 1143. Reh den 328: U.S. 897, 66 S. Ct. 1337, 96 L. Ed? Ford & Son; Inc. vs. Little Falls’ Fiber Company.” a supra, 280 U.S: 369. 50 S. Ct-140, 74 L. Ed. Se CT ORIIOE ES ee eee ee a Great Northern RwsCo. vs. W akan Eelectric. : Co., 107 Wash. 627, 86 Pa. 24 208 ........ 14 Georgia Power Company vs. Federal Power Com- | mission (Fifth Circuit) 152 F..2d 908 .... Georgia Power Compans vs. EFelly. 182 Ga. 33 SE ED ea cans kx: 5 Vln aoe wists Te Georgia Power. Company vs. Mocre, 47 Ga. App. a, 411-413 (170 SE 520) ...... et py oe 17 Henry Ford & Son, Inc. vs. Little Falls Fiber. Company, 280 U. S. 369,.50 S: Ct. 140, 74 PM 8 £6 s 5 Gi nt kcke suas Uxecedbaes 12 Harkan vy. City of Moultrie, 136. Ga. 561 (1911) Howard vs. County of Bibb. 127 Ga. 291 (156 : MS COC Chieu e type a tue wees awe i i) UI - LIST OF AUTHORITIES—(Continued ) Cases— (Continued): _ Lavin vs. Philadelphia Electric Power Company, (Decd Pa.) 34 F.2d 224 ............0.4..- Neal vs. Town of Decatur, 142 Ga. 205 (1914) . Oliver v. Hall County Memorial Hospital, 62 Ga. > MUN. oss d Mess cosy sacha bse baey Cat Rice Hope Plantation vs. South Carolina Public Service ‘Authority, 216 S. Ct. 500, 59 SE. - i ete SN dace nee Te Wyre rnin nee an Screws v. City of Atlanta, 189 Ga. 839 (1940)... Smith vs. Floyd County, 85 Ga. 420, (11 SE 850) » Town, of Decatur v. Dekalb County, 130 Ga. 929 ¢ PRE Noss catunwen sees ccasemnesans ane Turner v.’Fulton County, 109 Ga. 633, (1900) .. United States vs. Central Stockholders ay eer tion. of Vallejo (Ninth Circuit) 52 F. 2d > RES Pe rename rite! Bh eae ss Page 13 Wright v. Flotd Conny, 1 Ga. App. 582, 585 . ° (1007) ..-..- enero sd SE pe appen OTHER AUTHORITIES. | Article VII, Section VII, Paragraph 1 of the Con- stitution of the State cf Georgia ,....... Article I, Section III. Para; graph 1 of the Con- stitution of the State of Georgia ........ “Act (See Section 27. 16 USCA. Section 821) .. Crisp County (Georgia Laws 1925, page 72. et MEE IS taecc nwa bags aes «aes abkeepesys ‘, Rule 23 (19 (i) ...... generation of electricity therefrom whereas the dam- ages claimed in the petition related to the power line distribution system b:: which the generated electricity was transmitted and delivered. No question was there presented as to whether damages not recoverable under State law could be recovered by a property owner against a licensee by virtue of the, provisions of Section _ 4 14 Ne In Great Northern Rw..Co..vs. Washington Electric Co., 107 Wash. 627, 86 Pa. 2d 208, the railroad sued the ° - electric company, a licensee under the Federal Power Act, for damage for the erosion of its fill. The eleciric company made the point that the railroad’s fill was ‘illegally situated’ in the Columbia River, a navigable stream; that the railroad had no title or proprietary interest in the fill so situated as against the United _ States and that it had no fitle or proprietary interest therein as against the railroad which was acting as a licensee’ or agent of the United States government. The court held that*the railroad had a sufficient prop- erty interest in the fill to warrant a recovery of* dam- ages. There was no claim made that the railroad was not entitled to recover for such damage unf@er the state law. On the’ contrary, the opinion apparently recug- nized that such.a right and cause\of action did exist “under the state law. The rulings in the foregoing cases that. a licensee under the Federal Power Act, is not protected under the license against liability for damage to property rights recognized under state law do not justify the con- clusion reached by the Circuit Court here to the affect that under Section 10 of the Power Act. a licensee, such as Crisp County, is liable for censequential damages to property, notwithstanding such licensee wotild not be liable for such damages under state ldw. On the cor- trary, under the terms of the Act- (See Section 27, 16 USCA, Section 821) and all of the decisions above cited. it is clearly recongized that it was the purpose of @ Congress" to leave in force al] state laws pertaining to e Pay + ae \ 15 property and other rights unless they conflict with the dominant power of the Federal Government thereunder to promote the development of power on navigable streams and their tributaries. The enlargement of the liability of a licensee under the laws of the several states with respect to damage to property is in no . sense essential to the-purpose of that act. If the Fed- eral Government had not assumed. jurisdiction cver navigable streams under the Federal Power Act, the _ construction of dams on such streams would have been jeft to regulation by the several states and in such case a licensee would have been responsible only for such damages that were approprfate under the laws of the several States. The fact that the Federal Govern- tment has assumed jurisdiction to grant licenses does. not argue for the imposition upon a licensee of any greater liability. In two State Court Decisions. the Supreme Court of South Carolina and of Alabam: fave. as is recognized by th ie Circuit Court in its cpirion, distinctly ruled - contrary to the ruling made by the Circuit Court. | See: Rice Hope Planiation xs. South Corolina Public Service Authority, 216 S. C. 500) 59 SE 2d 132: Alabama Power Company rs. Smith, 229 Ala. 105, 155 So. 601. A proper constructicn of Section 10 of the Federal Power Act requires only that a licensee respond: in damages for injury tc property in accordance‘with the laws of the state notwithstanding the grant of the ' licensee to build the dam under the Fedeve)] Power Act. + 16 _ If the rule adopted by the Circuit Court is established. then Federal Courts will have to develop a federa! body of law relating to damages arising ‘as the result of a federally licensed project and the rules to covern their recovery. Sound reasoning indicates that. the word “damages” as used in Section 10 means legally recoverable “damages” and since there is no federa)} body of law governing damages, it is reasonable to conclude that legally recoverable “damages” has rela- tion to the laws of the state where the project and the property are located. The Validity of the Contract If the position takeh above concerning the proper _.interpreation of Section 10 of the.Federe] Power Act is .correct,- the act cannot be sustained, as ‘the Circuit Court decided, upon that section, as distinguished: fren - the law of the State of Georgia with respect to the damag? sued for nor can it be sustained on the contract on the Circuit Court’s theory that the contract was valid because it simply recognized contractually the liability of the County under Section 19. ‘ Under. the Constitution of the State of Georgia. as shown ‘by the provision above quoted. property (can not be taken or damaged without just compensation _ being paid therefor. Where a ‘public authority having the power of eminent domain takes or damages prop- erty, the question of damage may be settied by eminent domain proceedings or, if the taking and damaging is done without the initiation by such ‘public authority 6° 4 _ — 17 eminent domain proceedings, in an action brought by the owner against the public authority. In both instances, the damages and the only damages recoverable as just: compensation is the market value of the land taken and damaged. Hence, where land is taken. or damaged b: a public authority having the’ power of eminent domain. the law of Georgia permits a recovery only for permanent. damage to the realty and prohibits. under al] circumstances, recover against a public authcrity for _ consequential damages such as is involved in the . present case consisting of cost of repairing crosion to the respondent railroad’s embankment due tno the normal wave action of the backwater | | See: City Council of Augusta rs.-Lamar. 297 Ga. App 418, (140 SE 763); Bibb County vs. Green, 42 Ga. App 552 (156 SE 745); City of Atlanta rs. Due. 42 Ga. Apo 797-804, -(157 SE 256): Georgia Power Company r- Moore, 47 Ga. App. 411-413, (170 SE 529): Smith rs. Floy¢ County, 85 Ga. 420, (11 SE 850); Howard vs. County oF Bibb, 127 Ga. 291, (156 SE 745): Georgia Power Company. rs. Kelly, 182 Ga. 33, (184 SE 861). ) Under the laws of Georgia, a County i. not suable as for a continuing abatable nuisance: Bibb County vs. Green, 42 Ga. App. 352 (156 SE 745 e Hence. under the laws of Georgia. Crisp Count’ could ' not have been liable for the conseauential damages here Ah While “(e)very. county is a body corporate with power to sue or be sued in anv court’, 23 Ga. Ann. sec. 18: 1501, this means that a county can “be sued successfully only -upon liabilities against it created by statute or for breach of a valid contract which it is authorized by law to.make. |. ' eee ae Decatur County v. Praytor &c. Co., 163 Ga. 929 (1927); Town of Decatur v. Dekalb County, 130 Ga. 929 (1908); Turner v. Fulton County, 109 Ga. 633, (1900); Hotkan ¥.’ . City of Moultrie, 136 Ga. 561 (1911); Neal vs: Town of Decatur, 142 Ga. 205 (1914); City Council of Augusta ©. Richmond Co.; 178 Ga. 400 (1934); Screws. v, City of Atlanta, 189 Ga. 839 (1940); City Council of Dawson’v.. Dawson Waterworks Co:, 107 Ga. 696 (1899). Express‘ authority to a county to do a particular thing will imply authority to employ such means’ as may be necessary to accomplish the act, Olirer vr. Hall County; ’ Memorial Hospital, 62 Ga. App. 95, but counties ‘can "exercise no powers except those which are conferred |. upon them by legislative action, or such as are neces- sary for the exercise of their .corpofate powers the performance of their corporate duties. and the per- ‘formance -of the purposes of their association.” Albany Bottling Company v. Watson, 103 Ga. 503, 595: Wright v. Floyd. County, 1.Ga. App. 582, 585 11907). . “There is no general statutory authority in Georgia which would authorize Crisp County to enter into a contract, as was here done, under which the County assumed a liability for the taking and d imaging of priv ate Property for public purposes bevond the liabili- } 19 ; ty provided by the’ Cgnstitution: nor can anything be found in the Constitutiona! provision hereinbefore “quoted relating to the establishment by Crisp County _ of the.power facility in question authorizing the county to enter“into such contract. Such a contract is not-only clearly against public policy as held by the: district court but it establishes a debt prohibited by the Consti- tutional provisions hereinabove quoted, which debt ad- mittedly was not incurred in accordance with the pro-. visions of that section. : See? City Council of Dawson vu. Dawson Water W orks s Company, 106 Ga. 696, (32 SE 967». The Constitutional amendment authorizine Crisp' County to establish the power facility provided for the establishment of a bonded debt the proceeds from’ which were to be used for acquiring water power sites and locations and since the county had the power of eminent domain, there could have been no. reasonable necessity for a contract placing the County under a perpetual obligation to repair the respondent railroad's embankment such as were involve‘! The express provisions of the constitutional amend- ment relating to the power of Crisp County to enter’ into contracts refers to the sale and disposition of power and, under the foregoing circumstances, the right to enter into the contract here involved can not be said to have been reasonably implied in the power of Crisp County to use the proceeds of the. bonded in- debtedness there authorized in acquiring property for * ' 20 the dam dnd backwater. The Circuit Court does not suggest that the judgment “which might be obtained in ‘this case is to be paid oul of the proceeds of-the bonded indebtedness and the difficulty can not be .surmounted by the direction, as stated in the Circuit Court's opinion, that such judgment should be satisfied solely out of revenues from the operation of the power plant: The principle as stated in the decision of the Circuit ‘Court that: “Where a governmental entity is*authorized to, exercise non-governmental powers and engages in an activity of a business nature such as is genera'- ly’ engaged in by individuals or private corporatiors. it acts as a corporation and not in an¥ sovereign capacity. In such instance the law ldans to the theory that the governmental entité has the ful! power to function in such capacity as a private person might do,” is not applicable to counties of the State of, Georgia avoid v. Walton, 205 Ga. 606. 54 S.E. 24 424. The contract being invalid, it follows ‘t) that even if Section 10 of the Federal Power Act imposed upon the ‘county liability for the damages sued for, such liability would have to be asserted solely under the Federal Power Act and not.under the contract: (2) ‘that since Section 10 of the Federal Power Act does rot in fact make the county liable for damages which it would not otherwise be liable for under the laws of the state. the action can not be upheld ‘under the Federal Power Act, nor can it be upheld under the contract on the eae 21 theory that it was simply a recognition of a liabiljty imposed by the Federal Power Act. For the foregoing reasons, the decision oi the Circuit ‘~ Court of Appeals is erroneous and should be reversed. While the petition contained no express allegations showing the basis for federal jurisdiction in the lower court, it might be properly construed as being based upon diversity of citizenship and as 2n action to enforce a liability under a federal statute. The decision of the Circuit Court involves matters o public importance in that such decision constitutes an f errgnéous interpretation of an important federa! statute. namely, the Federal Power Act. whieh in view of in- - creased develodpment of public power and. governmental agencies. is ef widespread signifi-_ cance; the decision is contrary in.rinciple to decisions of this court and other Circuit Courts cf Appeal, and it impinges upon state laws regulating property rights and damages with referénce to public improvements by in- strumentalities of the state having the power cf eminent, domain. | vy both private 22 Conclusion. It is therefore respectfulty submitted that this case is one calling for the exercise by .this court of its. supervisory powers, by granting a Writ of Certiorari and thereafter’reviewing and reversing said decision. H. H. PERRY, JR. 3 Albany, Georgia, (GRAYDON REDDICK and. GEORGE WRIGHT, Wright & Reddick. Cordele, Georgia, on the Petition Counsel for Petitioner. . ~ . ; ‘ ‘ . 23 ; _ APPENDIX. IN THE “WNITED STATES. COURT OF APPEALS FOR THE FIFTH CIRCUIT | No. 18171 ; ' SEABOARD AIR LINE RAILROAD COMPANY, - Appellant, versus COUNTY OF CRISP OF THE STATE OF en ET AL.; Appellees. Appeal from the United States District Court for the . Middle District of Geergia. ‘ (July 12, 1960.) Before TUTTLE, CAMERON and JONES, Circuit Judges JONES, Circuit Judge: Crisp County, Georgia, herein called the County, was empowered by an amendment to the Constitution of Georgia' to build a dam across the Flint River; and to erect and operate a hydro-electric generating plant at a site upon the river specified in . Georgia 1 Laws 1925, p. TA et seq. ° 24 ‘ ¢ the constitutional provision. A crisp County Power Commission was created, a bond issue was authorized, and the Commission was empowered by the consti- tutional provisions to acquire rights of way for trans-’ mission linés,and for the purpose of building, main- ‘taining and operating dams, ponds, plants and ma- chinery. The Power Commission was “authorized, and empowered to employ such agents, servants, and em- ployees, and to make and enter into such contracts as are reasonable and proper in the exercise of the duties and powers herein conferred upon said Commission.” - The Flint River, at the site where the dam and generating plant were built, is a navigable stream. The County was required under the Federal Power Act to procure a license. See 16 U.S.C.A. §§ 19la et seq. The. statute, among other things, provides: : “Each licensee hereunder shall be liable for all damages occasioned to the property of others by the construction maintenance, or op- eration of the project works or of the works appurtenant or accessory thereto, constructed - under the license, and in no event shal! the United States be liable therefor.” 16 U.S.C.A. $ 803(c). . The dam and hydro-electric plant was built during or before: 1930. Since the completion of. the dam and power plant, the County has been generating and marketing electric power. ° . The appellant, Seaboard Air Line Railroad saunad, and its predecessors, operated a line of railroad in interstate commerce bétween Savannah, Georgia, and - Montgomery,’ Alabama. This line of rail had been in operation for many years before the County's dam was | built. The Seaboard’s tracks crossed the Fiat River” . about eight miles upstream from the site of the dam., by a fill or embankment and a trestie or bridge. The building of the dam and the consequent raising of the water level damaged the embankment ot the Seaboard over which its track; were laid. In 1939 a written ugreement was made between the Receivers. of the Seaboard’s then predecessor anc the County. In the -preambie to this contract it w as recited that “the pool of water impounded by the said dam eXtends to and beyond the said ‘line’ of railroad crossing Fi:nt River and has submerged a portion of the embankment .¢gnsti- _ tuting part of said railroad line, and the - ufmergence of the said railroad embankment bs .he aforesaid poo! of water has occasioned injury to the said embank- ment; and the parties hereto have agrced on the terms and conditions pursuant to which said injury shail be repaired and. future ‘injury protected against” = In- cluded in the agreement. and’stating the terms and con- ditions for protecting the Seaboard’s.ersbankiment fror further iftjury, was Section 3, which provided “Should the normal hich water leve’ of the. said pool of water be raised by the County or: sheuld any chahke :n xi. sting cona.tiors re- quire, whether due to increase in the herght or other structural changes in the dais. filure ef the rip-rap to he installed hereunder Droperl: o protect the said embankment from injury. or otherwise, County vil! at its exper-e take 2 % tea Pe, 5 ee ee . es m r such action as may be ne¢essary to protect said railroad embankment from injury.” 4 By its terms the agreement inured to the benefit of the successors of the then railroad company and its Re- c€ivers. On January 29, 1957, the Seaboard gave notice to the County that the embankment was in a bad state of re- pair and had beén seriously damaged by being under- mined by water impounded by the dam. Seaboard made demand upon the County to protect the embankment The County refused to repair the embankment. On— June 28, 1958, the Seaboard brought stiit against the County alleging that the Seaboard had made repairs to the embankment at a cost of $54,286.18 for which :t prayed judgment. The Seaboard -asserted that the County was _ liable ‘both under the agreement and by reason of the provisions of ‘the Federal Statute under, ‘which the Federal Power Commissicn granted a license ‘a9 the County. In its answer the County denied some .f the Seaboard’s factual averments but admitted that t had refused ‘to make repairs on the embankment The County asserted that the Seaboard’s complaint | failed to state a claim upon which relief could” be cranted; and specifically alleged that the contract’ wes ultra vires and unenforceable so far. as the County is concerned, that the Federal Statute imposed no liability on the County. and if it undertook to do so it would be unconstitutional and void, and that the cause of action of the Seaboard, if any it had. was in eminent domain for damage resulting from a taking when the dam wae: q ¢ 27 built, but ‘that any such claim had long since itis barred by limitations. - . * The district court held with the County. F was of the opinion that the Federal Power Act imposed no liability on the County: for injuries inflicted upon the property of others by the County’s operations. The court held that, under the Georgia Constitution and the decisions construing it, there was no authorization for the County to enter into the contract with the Seaboard, and that the County was prohibited from assuming the obligations which it had undertaken by its contract to discharge. The complaint was dismssed, judgment was entered for the County, and the Seaboard has. appealed. We think the district court has misconceived the meaiy- ing and purpose of the provision of the Federal Power Act which provided for liability of Jicensees for damage - to property of others, although its conclusion that the liability imposed relates only to legal liabilities already existing has‘support in two state court decisions. Rice flope Plantation rv. South Carolina Public Se--cice Au- thority,.216 S. C. 500, 59S. E. 2d 132: Alabama Powér Co. v. Smith, 229 Ala. 105, 155 So. 601. If the County had not _ obtained a license from the Federal Power Commission it would have had no right to build the dam and con- Struct the generating plant. Federal Power Commission v. Oregon, 349 U. S. 435, 75 S. Ct. 832, 991... Ed. 1215; First Iowa Hydro-Electric Cooperative :. Federal Power Com- mission, 328 U. S. 152, 66 S. Ct. 906, 90 L. Ed. 1143, reh. den. 328 U. S. 897, 66 S. Ct. 1337. 90 L. Ed. 1647: Georgia Power Co. v. Federal Power Commissiox, sth Cir. 1946. 152 FF. 2d 908. The license is conditioned upon the ac- 28 ceptarice of the terms of the Act.. 16 USCA. $ 799. It scems to us unlikely that the Congress intended by the language it used to do no more than to disclaim liability on the part of the United States for the acts of the licensee. When the Federa\ Power Act wes passed in 1920, sovereign ifmmunity from suit would have proctect- ed the United States from any liability. Cf. Phi'1delphia Co. v. Stimson, 223 U.S. 605, 32 S. Ct. 340, 56 L. Ed. 570. The waiver of ‘the Federal, Tort Claims Act did not be- come effective until many years later. The control of the ‘United States over navigable streams empowers Con- “ress: to condition the licenses in any manner it deems proper: No impropriety can‘be inferred from a require- ment that a licensee protect the property’ of others. That this.requirement was imposed by the Act as a.con- dition of a license has been recognized by the Supreme Court. Henry Ford & Son, Inc. r. Little Falls Fiber Co.. 280 U. S. 369, 50 S. Ct. 140, 74 L. Ed. 483. Seé& alsa Grand River Dam Authority v. Federal Power-Commissio?. 10th Cir. 1957, 246 F. 2d 453; United States v. Central Stockholders Corp., 9th Cir. 1931, 52 F. 2d 322; Levin r Philadelplria Electric Power Co., D. C. E.D.Pa. 1929, 34° F. 2d 224. In the year 1939, the same vear that the - County made its contract with the Seaboard to protect ‘the embankment from injury, the Supreme Court of Washington held that, under the provision of the Fed- eral Power Act, a licensee whichSerected a’ dam was liable to a railroad for damages to\an embankment. Great Northern Railway Co. r. Washington Electric Co. 107 Wash. 627, 86 Pac. 2d 208. We are unable to reach . any ‘different conclusion. . : een 29 The district court decided that the provision of the Federal Power Act, 16 U.S.C.A. ; 803(c), imposing lia- bility upon licensees for damage to the. property of others means. merely that if legal liability exists it shall ' be the liability of the licensee and: not that of the Fed: eral Government. The district court concluded that, under the precedent of Bibb County v. Green, 42 Ga. App. 552, 156 S.E. 745, the Seaboard was barred from recovery by limitations upon the expiration of twelve months from the completion of the dam. In the Bibb County case it was said that the right to compensation: for injury to private property inflicted by a. county exists, under the Georgia Constitution, only where the. enjoyment of a right of the property owner is inter- fered with and the property is thereby- rendered less valuable. The doctrine of soyereign immunity was con- Strued as prohibiting . suits against counties for con- tinuing or recurring injuries resulting from the con- structing of a public improvement. It is not asserted that the right of ‘the Seaboard to qwn ane use-the embankment for the carrying of its rail over which its trains operate was not a right which _ Was recognized by the laws of Georgia. It is. though, contended, and the district court*so held, that the right is one which could be protected. if at all, by eminent domain. It*is not apparent whether the extent of the future damage could have been estimated at the time the dam was built. ‘Indeed, it may be doubted that it was contemplated by either the Seaboard er the County that the raising of the water level by the dam would 30 cause damage tothe dam. Eight years or more elapsed after the dam was completed before the contract was made for the repair of the embankment. In that agree- ment it was recognized that the damage might recur. Also in the agreement was the recognition of the lia-. bility of the ‘County for the protection of the embank- ment from. future injury. ‘It seems doubtful, under the circumstances existing when the dam w as built and for | two vears thereafter, that the power of eminent domain could have been invoked by the County for the acqui- sition of the rigit to undermine the Seaboard's embank- ment in-the futur¢ and at recurring intervals. Cf. Henry ‘Ford & Son v. Little Falls. Fibre Co., supra. The County did not ebisiinat to acquire i eminent do- main the right to inflict damage upon the embankment and to continue inflicting damage from time to time Neither did the Seaboard seek any remedy having its origin ina taking of or damage to property such as right have been made the basis for a condemnation award. But whether or not the right of eminent domain might have been invoked, it does not follow that the County can, for that reason, evade the liability that the statute imposes for the damage to the Railroad’s em- bankment. If it had been intended ‘that this liability _ could be asserted only by a proceeding in eminert domain the statutory provisions would have been cast in different form. It is apparent, we think, that in pro- viding for liability of a licensee for all damages oc- casioned by the maintenance or operation of the proj- ect works, as well as by construction, Congress contem- plated damage inflicted after as well as at the time 31 of the construction. The Seaboard’s right was not. re- stricted to an award in eminent domain. Where a “governmental entity is ; authorized to exer- cise non-governmental powers and engages in an ac- . tivity of a business nature such as is Generally engaged - in by individuals or private corporations, it acts as a corporation and not in any soavereign capacity. In such instances the law leans to the theory that the govern- ~ . mental entity has the full: power to function in such ca- . pacity as a private person might do. 37 Am. Jur. 748, Municipal Corporations § 132; Miami Beach Airline Service v. Crandon, 159 Fla. 504, 32 So. 2d 153, 172 A.L.R. 1425. — | . As was stressed in the opinion of the district ¢ourt, it is the general rule in Georgia ‘that counties can exercise no powers except those: ‘granted to them by the State, and can be held liabie upon their contracts only when the State has. authorized the incurring of the liability which is asserted ‘against them. Crisp County, like other Georgia Counties, is a body corporate under the Georgia law. Ga. Code § 23-1501. It is expressly authorized by a constitutional grant of power to build and maintain a dam and to construct and operate a- hydro-electric generating plant. It has built the dam-- and has constructed the plant. It is now maintain: ng and -. operating them. Incident to these specific non-govern- mental powers, the constitutional amendment gave, in broad and comprehensive terms, the power to contract. The general limitations upon the contractual powers of counties as contained in the gereral provisions of the ‘32 State Constitution must yield to the specific Crisp County amendment to such extent as may be required in order to give full effect to the grant of power to make and enter into such contracts as are reasonable ‘and proper in exercise of the duties and powers cén- ferred upon the County. See Stewart v. Bacon County, 148. Ga. 105, 95 S.E. 983. The statute imposed a liability upon the County for ‘damage ‘to the Seaboard’s embankment. In recognition of that liability the County made the 1939 agreement for * the repairing’then of the embankment, which was done. ‘and for the future protection of the embankment, which it refuses to do. The operation of the hvdro-electric. plant is a business operation. It is separate from the rormal governmental funetions. of the County. The power of the County to make ‘ontracts, implied by law as well as conferred by the constttutional amendmen. is full authorization for the contract mede in the ; sumption of the duty as ifmposed by the federal sta See Crisp County v. S. J. Groves &* Sons Co., St 1934, 73 F. 2d 327, 96 A.L.R. 391. The order of t trict court must be reversed: and the cause remanded for further proceedings. In the event 2 judgment is ultimately rendered tor the Seuboard, it’seems that it should not be discharged out of the genera!-tax revenues of the County. Po)! County v. Lincoln National Life Insurance Co., 5th Cir -1959, 262 F. 2d 486. However, the revenues of the hydro-electric plant can be made available for such purpose. Cf. Crisp County v. S. J. Groves & Sons Co., supra, | . ° - 33 + ‘Our holding here does not in any wa conflict arith: the decision in Seaboard Air Line Railroad Co > Sare- sota-Fruitville Drainage District, 5th Cir 1952, 251 F 583, reversed on —- 255 F. 2d 622, cert. den 3 U. S. 836, 79 S. Ct. 60, 3 L. Ed. 2d 73. Seaboard Air Line Railroad Co: v. Sarcsota-Fruitrille Dramege Distroes. Sth Cir 1958, 255 F. 2d 626.,In that case the statute cre. . ating the drainage district prohibited the district: from expending its tax revenues except for improvement anc maintenance of the drainage district. Since the distric’ had no other source of funds, it could. not be compeile« to respond in damages for tort, nor could it make 4 valid agreement to indemnify against tort liabili tv. Here the County was under a duty imposed by the Federa Power Act to protect the Sedboard’s property, and thus the Act created a tort liability. In 30 The order of the district court, Is reversed and the cause 1s remanded. | , REVERSED AND REMANDED: A true copy Test: ; oF + EDWARD W. WADSWORTIi?. Clerk, U. S. Court of Anpeal; Fifth Circuit. By CLARA R. SES. ; Deputy. New Orleans, Louisiana. Nov. 25. 1969 34 JUDGMENT. Extract from the Minutes’ of July 12, 1960. No. 18171, SEABOARD AIR LINE RAILROAD COMPANY, ‘ e. versus COUNTY OF CRISP OF THE STATE OF GSCGnA. ET AL. This cause came on to be heard on the transcript of che record from the United States District Court for the ‘Middle District of Georgia, and was argued by counsel. _ ON CONSIDERATION WHEREOF, Ii is now here ordered and adjudged by this Court that the order of the said District Court appealed from in this cause be und the same is hereby, reversed: and that this cause be. and it is hereby, remanded to the said District Court for further proceedings: , It is further ordered and adjudged that the eppellees. County of Crisp of the State of Georgia. and others. be condemned, in solido, to pay the costs of this cause in this Court for which executior. may: be issued out of the said District Court. ees IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 18171. e SEABOARD AIR LINE RAILROAD COMPANY, Appellant, } i versus cou NTY OF cRIsP OF THE STATE OF GEORGIA. os | ET AL. re eee emer a Appeal from‘ the United States District Court for the Middle District of Georgia. - . | Septerhber 1, 1969 - Before TUTTLE, CAMERON and JONES. Cireust Judes . PER CURIAM. IT IS ORDERED That the petition for rehear: Ingen the ‘above entitled and numbered cause be. and it is hereb~ DENIED. _ : EF COPY | aa a ee Court. U.S, =. rFil-FD CLS 295 Supreme Court al the United States DaMes _ OCTOBER TERM, 1960. - . BROWNS Clerk ~ " : | ane ” No. DD % cou NTY OF CRISP OF THE STATE OF GEORGIA. ET AL.., Petitioners, versus SEABOARD AIR LINE RAILROAD COMPANY, Respondent. | . ee . Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit. | BRIEF ON BEHALF OF SEABOARD AIR LINE RAILROAD COMPANY, RESPONDENT. JC. McDONALD. P ©. Address: PO Box 408, Fitveerald., Georgia * CHARLES T. ABELES Attorneys for Respondent P ©. Addréss: , S600 West Broad Street. Richmond. Virginia INDEX. STATEMENT OF THE CASE-.......... on 1) Jurisdictional Matters ..... SaAbnnaesveoess 2) Questions Presented. for Review ARGUMENT: Ce Ge I a os oe ot cg nesvise (2) Liabrhty of County Under Federa! Power Act (3) Liabthty Under Georgia Constit .ion and Reme ..... cae eas fh TH . eiaevahecnees CONCLUSION 2... ....... CASES CITED. Atlanta Terra Cotta Co. v. Ga. Ry. & Elec. Co, 132 Ga. 537, (64 S. mm SOB) ...-----:. Barfield v. Macon County, 49 Ga. ap 239, 175 S. : ER eb S oak aad iy SOU RE ea ees Oe owe oe ah Bates v. Madison County, 32 Ga. App. 370, -( 123 S. 9 EN eee ee Of pap ae Central Georzia Power Company ‘v. Butts County, 139 Ga. 490, (77 S. E.-380° ............ Ae Central Georgia Power Co. v. Mays, 127 Ga. 120, (72 ge ee ee nee Decatur Ceuntv v. Prawtor, Howton & Wood Con- tractin¢ Company, 163 Ga. 929. (137 S. E. 247) Elberton Southern Railway Company v. State High- wav Department of Georgia, 211 Ga. 838, (89 S.E. 2d 645) ....... PP ary be ee Ree Ce OE 14 15 14 14 rs U CASES CITED—(Continued) Federal Power Commission vy. Oregon, 349 U. S. 435, 73 S.Ct. 832, 99 L. Ed. 1215 ........ Felton Farm Co. y. Macon County, 49 Ga. “App 239. Coo. 4 ene First Iowa _Hydro- Electric Cooperative’ v. ‘Federal Power Commission, 328 U. S. 152, 66 S. Ct. 906: Se ORO ote en pee a ee Georgia Power Co. v. Federal — er Commission, 5th . Cir. 1946, 158 F. 2d 908 ....... ferry: | Grand River Dam Authority v. Federal Bower,;Com- " mission, 10th Cir. 1957, 246 F. 2d 453. * Great Northern Railway Co. v. Washington Electric Co., 107 Wash. 627 (86 P. 2¢ 208) .......... Gwinnett Courty v. Allen, 56 Ga. App. 753, (194 S FE. 38) Ren ‘Henry Ford & Son’ Ine. x. Little Falls Fiber Co, 280) U. S. 369, 50 S. Ct. 140, 74° L. Ed. 483 |. Lavne & Bowler Corp. v. Western Well Workeri, Inc. 261 U. S. 387, 67 L. Ed. 712, 43S. Ct. 422 ... Levin v. Philadeiphia neo Power .Cc., D.C. E.D Pa. 1929, 34 F. 2d 2 a Lynch, et al. v. a eal et al., 188 Ga. 651, a S. E. 2d 3 OE apy McArthur, et - \. State ‘Highway Department. 85 Ga. App. 500, (69 S. _* & -eeteee McCrea v. Georgia Power Co., 46 Ga. App. 276 (167 ec Ao a te ct Uy, ee Miami Beach Airline Setiice v. Crandon, 159 Fla $04, (32 So. 2d 153) .......... i Oliver v. Hall County Memorial Hospital, 62 Ga “App Ff 5 S & Errno Page 12 14 ~- ~ 4 Rice v. Sioux City Memoria! Park Cemetery, U. S Towa 1955, 75 S. Ct. 614, 349 U.S. 70, 99 L. Ed 897 . 7 a) ul CASES CITED—(Continued) FN _ Page . Smith v. Flovd County, 85 Ga. 420 (11'S. E. 850)... 8,14 Testa v. Katt, 330 US. 386, 67 S. Ct. 810, 91 L. Ed. 967 | Se POR e Pe ye EE ee ee 13 United States v: + Carel Stockholders Cots. 9th Cir. | 9031, 82 F. 2d 322 2... cece ee ee ae Was ningion County v. Sheppard. 46 Ga. bias 240 ‘167 'S. E. 339)... 7 Willams y. State Highway Board of Georgia, 195 Ga. ana 18. (22S, E. 24 #21) Ee Peet ek ert eae 8 » Wright v. Flovd County. 1 Ga. App. S82, (S8S.E.72) °§7 STATUTORY CITATIONS. | Section 10 of the Federal Power Act {16 U.S.C.A.° ° Sec. 803 (c)} 22... eee Ft Georgia Laws 1925 (pp. 272 ¢ et seq.)_ Sh Peeters a ‘Georgia Laws 1894 (p. 95) ......... Pe vaes sa wee ye Georgia Code Annotated, Sec. 36-301 ............., 6 Georgia Code Annotated; Sec. 36-302 ....._.. Tere 6 Georgia Code Annotated, _. Oe ok oss Corde 14 Foe ees (Pay tess Dateien rie eee * SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1960. o3 COUNTY OF CRISP OF THE STATE OF GEORGIA, ET AL., Petitioners, versus . SEABOARD AIR LINE RAILROAD COMPANY, Respuudent. « ——_———— Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth-Circuit. - BRIEF ON BEHALF OF, SEABOARD AIR LINE RAILROAD COMPANY. RESPONDENT. I. The petitioners in their brief have succinctly stated” . the questions to be decided in this case and have correct- ly set out the opinion of the Fifth Circuit Court of Appeals. and the applicable law as well as statement of the case, and we shall address our reply to the 2 _ propositions which are argued in the brief of peti-| © _ tioners. | At the outset we think that the decisicn of the Fifth Circuit Court of Appeals. stated clearly the law involved in this case and that said decision is em- inently correct. ms that these matters shou!d be settled by agreement :f possible. | The Court of Appeals of Georgia which ordinarily is a court of equa! authority with the Supreme Court of Georgia in its particular sphere, has held that ex- press authority to a county board to do a particular thing will imply authority to employ such means an‘ agencies as may be necessary to accémplish the act | Olirer r. Hal! County Memorial Hospital, 62 Ga App 95 (1940). 1° SE. 24. 138 7 One of the leading Georgia cases on the ‘question of a county's powers is that of Wright v.° Floyd County, | Ga. App. 582 (58 S.E. 72). This decision is very exhanstive and: discusses rather fully the rights of counties in Georgia to make contracts. Another case dealing with the authority of the counties ‘in Georgia to enter into a contract is that of Washington County r. Sheppard, 46 Ga. App. 240 (1933), (167 SE. * 3:39). . The Supreme Court of Georgia has heid. “A written contract duly entered on the minutes of the county board, between the commissioners of roads and revenues ofa county and a power company intending to use water to be contained a large reservoir as its. source of power, that _ if the county will suffer the flooding of a certain road, the power company will make the necessary changes of location and erect the necessary bridges, ail ut its own expense, before the reser- voip is filled, is an enfogceable contract: and if for any cause specific performance of it is im- possible, damages for its breach may be recovered. “la: The written application by the power com- pany, its acceptance’ uy the proper county au- thorities, and the entry of beth on the minutes. are sufficient to constitute a contract." Central Georgia Power Company ~. Butts County, 129 Ga. 499, \77 S.E. 380 The law in Georgia 1s that a counts*:s liable for the breach of a valid authorized contract, notwith- -tanding the fact no Statute express!+ suthorizes the . . 8 same. Decatur County v. Praytor, Howton & Woo Contracting Company, 163 Ga. 929, (137 S.E.247). See ulso: Lynch .et al. v. Harris County, et al., 188 -Ga. 651, (4 SE. 2d°573). | The Supreme Court of Georgia, in an early case, held that where ‘a county has damaged private prop- erty by constructing an embankment and trestle as an approach to a public bridge the county would be able to the owner for such damages although there . Was no statute authorizing such action based on the ground that the constitution declares that . private property shall not’ be taken or damaged for public purposes without just and adequate compensation be- ing first paid. Smith v. Floyd County, 85 Ga. 420. (11 S.E. 850). , % The Court of Appeals of. Georgia in the case of McArthur, et al. v. State Highway Department,. 85 Ga. App./500, 169 S.F. 2d 781) expressly héld that conse- quential damages to property caused by the negligent proper construction of the improvement are not proper cOnsideration’in a condemnation proceeding but ure the subject for a separate suit for damages, citing the following cases: Atlanta Terra Cotta Co. v. Ga.’ Ry. & Elec. Co.: 132 Ga. 537 (5) (64.S.E. 563); Centra! Georgia Puwer Co. v. Mays, 137 Ga. 129.14) (72 SE 900i: McCrea’ r. Ga. Power Co., 46 Ga. App. 276 (3) 167 SE. 540:: 29 C.J.S. 1029. Sec. 161... - _ This is followed-up in the case ‘of Williams rv. State Highweay PRoard of Georgia, 195 Gu. 18 (22 S.E.: 2d . 621), which held where a petition sought consequential damages against a county resulting from the manner. - in which a highway was constructed stated a cause of action and certainly, this would answer any con- tention that suit could not be brought for Gamages against the*County of Crisp. / p it is to be semembered that Crisp County was given the right to operate a hydro-electric generating piant and was given full authority to make all contracts necessary to Carry on this business. The Fifth Circuit Court of Appeals has very succinctly stated the real trend of mouern law, quoting from the opinion as follows: ae . "Where ‘a bese iceomten entity is authorized to P ‘€NOreise non-lovernmental powers and engages im” cn sstivity of a ‘business nature such as is: generail. engaged in by individuals or private cor- poratiors. it actS as a cprporation and not in any sovereign eapacity. In ‘such instances the law ieang t) the theory that the governmental entity has‘the Dl power to function in sych capacity as a pYivate rerson might do. 37 Am. Jur. 748, Mu- nicipa: Corporations Sec. 132: Miami Beach Air- line Service v. Crandon, 159 Fla. 504, 32 So. 2d 153, 172 ALR. 5. : The quest.cns in this ‘case ‘could fot have been de: termined ty eminent domain. According to ‘the con- -fentions oz ine petitioners herein, the County of Crisp, cting through the’ power commission, should have ates the right to destroy the Seaboard trestle and embankment Sy eminent domain. It is yéry doubtful 10 that any court,would have permitted this to have been _ done. It is doubtful if the Seabeard suffered any dam- : age at the time the dam was originally built. Can it be truthfully said that, because the Seaboard would not have suffered any damages at the time the dam was built, 1t would be forever barred from asserting any claim for damages Which may have occurred at a subsequent date? The parties in this case simply did what ordinary people would do. and that is to attempt to settle their .differences by contract. The parties dealt at arm’s length and both fully understood their respective obligations, and we respectfully sub- mit that the contract in question is not ultra vires, but it was a binding, enforceable agreement and that the Fifth Circuit Court of Appeals Was correct: in’ so finding. Vv. THE SEABOARD. HAD RIGHTS UNDER SECTION 10 OF THE FEDERAL POWER ACT, AS FOUND IN 16 U.S.C.A. SECTION 803 (¢). This succinctly states: “Each licensee he+2under shal! be® liable. for all damages occasioned to the property of others by the construction. maintenance, or ceper- ation of the project works. or of the works ap- rurtenant or accessory thereto. constructed under the license” It is our contention that the law of Georgia protected the Seaboard in its right-of-way. trestle and embank- ll ment across the Flint River and that when this was’ damaged, owing to the construction,- maintenance and operation of the dam built by Crisp County in the Flint River, that it became liable for all damages to. the ‘Seaboard. All the decisions cited by petitioners in their brief. hold that under the Section 10 of the. Federal Power Act the licensee is liable for any damages due to the construction, maintenance and operation of the proij- ect works. The Fifth Circuit Court of Appeals did not predicate its decision solely on the liability under Section 10 of the Federal Power Act. The court in its cpinion stated as follows: “It is not pein that the right of the — board ‘to own and use the embankment for the carrying of its rail over which its trains operate Was not a right which was recognized by the laws of Georgia. It is, though, contended. and the district court so held, that.the right is oné which could: be protected, if at all, by eminent domain. ‘It is not apparent whether the extent of the future damage could have been estimated at the time the dam was built.~Indeed, it may be doubted that it was contemplated by either the Seaboard or the County that the raising of the water® level by the dam would cause damage to the dam. Eight years or more elapsed after the dam was — completed before the contract was made for the repair of the embankment. In that agreement it | was recognized that the damage might recur. 12 te Also in the agreement was the recognition’ of the liability of the county for the protection of the embankmenj from future injury. It seems doubt: ful, under the circumstances existing when the dam was built and for two-years thereafter, that the power of eminent.domain could have -been invoked by the county for the acquisition of the - right to undermine the Seaboard’s embankment | in the future and at recurring intervals. Henry Ford & Sons, Inc. v. Little Falls Fiber Co., 280 U.S 369, 50 S. Ct. 140, 74 L. Ed. 483.” ” This Court, and other courts have recognized rights exist under Section 10 of the Federal Power Act Henry Ford & Son, Inc. v. Little Falls Fiber Co., supra; Grand River Dam Authority v. Federal. Power Commission, 10th Cir. 1957, 246 F. 2d 453; United Stqtés v. Central Stockholders Corp.; 9th Cir. 1931, 52 F. 2d 322; Levin v. Philade'phia Electric Power Co., D. C ED.P:. 1929, 34 F. 2d 224. Particular attention is called to the. fact that in the year 1939, the same year Crisp County made its ~ contract with the Seaboard, that tne Supreme Cour: of Washington held that, under the provisions of the Federal Power Act, a licensee which erected a dam was liable to a railroad for damages to an embank- ment. Great Northern Railroad Co. v. Washingt’ Electric Co... 1097 Wash. 627, 86 Pac. 2d 28. It was pointed out by the Circuit Court of Appeals if the county ad not obtained a license from the Federal Power Commission it would not have had the 13 right to build the dam and construct the generati ig pliant. The court cited ss authority for this statem-:nt the following cases: . Federal Power Commission v. Oregon, 349 U. $. 425, 75 S. Ct. 832, 99 L. Ed. 1215; First lowa Hydro-Electric Cuoperative v. Federal Power Commission, 328 U. S. 152, 66 S. Ct. 906, 90 L. Ed. 1143, reh. den. 328 U. S. 897, 66 S. Ct. 1337, 90 L. Ed: 1647; Georgia Power Co. v. Federal ‘Power Cammis- ston, Sth Cir. 1946, 152 F. 2d 908. The Seaboard in its coraplaint alleges that its trestle and embankment had been undermined by the ebbing and flowing of the waters of the Flint River against its trestle and embankment, and darn’... to the extent of some $50,096 that the deter vat recog- nized their liability by entering into a cuntract agr. -- ing to remedy and pay for such damage. The plaintiff railroad acting and relying upon this contract. re- naired the damage to its trestle and embankment and called upon ‘the defendants’ for reimbursement. and _payment in accerdarce with the terms of the contract. The defendants’ liability became fixed under the con: ‘tract and also under Section 10 of the Federal Power Act The United States Coxstitution and the laws passed pursuant. to it are the supreme laws of the land tinding alike upon states, courts and the people, anv- ‘hing in the constitution or laws of any state to. the: ontrary notwithstanding “USCA. Constitution, Art 6. Sec. 2 Testa v. Katt, 67 S. Ct. 810, 220 U.S. 386 91 L. Ed. 967, 172 4.L.R. 223." | 14 VI. THE DEFENDANTS ARE ALSO LIABLE UNDER THE CONSTITUTION OF THE STATE OF GEORGIA, WHICH PROVIDES THAT PRIVATE PROPERTY SHOULD NOT BE TAKEN OR DAMAGED FOR PUBLIC PURPOSES WITHOUT JUST AND ADE- -QUATE COMPENSATION BEING FIRST PAID. GEORGIA CONSTITUTION, PAR. 1, SECTION .3, ARTICLE 1, GEORGIA CODE ANNOTATED, ‘SEC- TION 2-301. There are numerous decisions in Georgia which hold that a‘county is liable for damages resulting from the taking or damaging ,f private property for public purposes. See Smith v. Floyd County, 85 Ga. 420, (11 S. E. 850) (1890); Bates r. Madison County, 32 Ga App. 370, (123 S. E. 158) (1924); Gwinnett County vr -Ailen, 56 Ga. App. 753, 755, (194 S. E. 38) (1937); Bar- field vr. Macon County, 109 Ga. 386, (34 S. E. 596) (1898 | and finally it was held in Felton Farm Co. v. Macon County, 49 Ga. App. 239, (175 S. E. 29) (1934), that a _ county can be held liable to the extent of an injury: sustained by property through public works, not on the theory that the county is liable, as are other tort- ’ feasors. for the negligent’ acts and conduct of its acents while acting within the scope of their authority. but for the reason that it cannot, either with or with- out the guise of contractual authority, damage the property of another for the public use without jus: and adequate compensation being paid , 15 CONCLUSION. We therefore respectfully submit that this case .was carrectiy decided by the Fifth Circuit Court of Appeals and that the writ of eettiorari should be denied. J.C. McDONALD, P O. Address . P.O. Box 498, -F zgerald, Ga., : ; a CHARLES T. ABELES, ° Attornevs for Respondent. P O. Address. | * | 3600 West Broad Street. Richmond, Virginia. I. CHARLES T.’ ABELES. do hereby certify that [ have this dav served the petitioners in the within case with copies of the foregoing brief of respondent, by mailing-a copy of the same to Honorable H. H. Perry, Jr.. P. O. Box 747,-Albany, Georgia, and a copy to Honorabie Graydon Reddick and Honorable George Wright, Cordele. Georgia, they being attorneys of rec- ord for petitioners. All of this on the - ... dav 'of December, 19609. | / CHARLES T ABELES --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0728%3A2. Public record. Not legal advice.