Opinion
21136.
ARGUED JANUARY 10, 1961.
DECIDED FEBRUARY 9, 1961.
Injunction, etc. Fulton Superior Court. Before Judge Shaw.
John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., M. K. Pentecost, Jr., for plaintiff in error.
J. C. Savage, Martin McFarland, contra.
1. Where the City of Atlanta, on July 5, 1960, under the provisions of the act of 1957 (Ga. L. 1957, pp. 387 et seq.; Code Ann. § 36-601a et seq.), instituted condemnation proceedings to acquire a perpetual easement over a private alley for use in connection with a fire-department station, and the superior court referred the matter to a named special master, the owner of the private alley could not by petition for injunction, brought on July 20, 1960, defeat the condemnation proceeding or litigate the issue that the property sought to be condemned was being condemned for private rather than public purposes. Such issue must be litigated in the condemnation proceeding, and the trial court did not err in dissolving the original restraining order and in refusing the temporary injunction prayed. Johnson v. Fulton County, 216 Ga. 498 ( 117 S.E.2d 155); Fulton County v. Aronson, 216 Ga. 497 ( 117 S.E.2d 166); Mitchell v. State Highway Dept., 216 Ga. 517 ( 118 S.E.2d 88).
2. This judgment is not to be construed as in any way affecting the rights of the parties to the condemnation proceeding. The status of each issue is as though this suit had never been instituted, and any pleadings that could have initially been filed in the condemnation proceedings may now be filed in the same.
Judgment affirmed. All the Justices concur.