
    The Normandale Lumber Company v. Knight.
    Under the constitution of this State, land can be taken for private ways only in “ cases of necessity.” The evidence failing to show that the present case is one of necessity, the superior court did not err in sustaining the certiorari and reversing the judgment of the ordinary.
    March. 26, 1892.
    Argued at the last term.
    Private ways. Constitutional law. Before Judge Roberts. Bodge superior court. February adiourned term, 1891.
    The ordinary of Bodge county granted an application of the lumber company for the construction of a tramway over certain lands (see Acts 1887, p. 103), and upon certiorari his decision was overruled, to which the lumber company excepted. The petition of the lumber company, filed on May 12, 1890, alleged that it desired to construct a tramway to connect with the Normandale & Oomulgee river railway, for transporting lumber, naval stores and timber, over' lot of land 73 in the 14th district of Bodge county, not to exceed in width fifteen feet; that the proposed line was to start from the main line of the Normandale & Oomulgee river railway from a certain lot, then running through that lot westerly through another lot and striking the lot in question going through it half way on the northeast and southwest line coming out at or near northeast corner of opposite line on another lot (78), and (some word undecipherable by the reporter) on lot 175 in said district; that the whole of said branch of said railway would not exceed five miles in length; and that one Cannington is in possession of the land, and J. N. Evans and Lewis Knight each claim to be the owner. Written notice of the application was issued to each of the three claimants, and they were served. On the day appointed for a hearing Knight demurred to the application for insufficiency in law; because it did not admit title to the lot in him; and because it did not show terminus of the tramway. lie also filed objections to the appointment of appraisers and laying off of the road through lot 78, upon the ground that applicants could have such way over their own land, and there was no “necessity for such,” and that said right of way did not connect with any railway' in the State but with other tramways. He also prayed that a warrant issue directing the sheriff to summon a jury to try the question of damages. It appears from the judgment of the ordinary that the ground of demurrer as to the necessity of .showing the termini of the tramway was remedied by amendment of the application, without objection. In addition to granting the application and appointing commissioners to lay out .the right of way, the ordinary, at the instance of Knight, ordered the issuing of the warrant for summoning a jury to try the question of damages. The evidence before the ordinary was, in brief: The manager of the lumber company testified that that company had built a railroad from Normandale on the E. T., Ya. & Ga. R. R. to a point on the Ocmulgee river; that said railroad was standard gauge and used to transport lumber and naval stores from the woods to the company’s mill and still at Normandale, also to transport lumber to the river, and in carrying freight and passengers along the line; that said company desired to build a tramway about five miles long, to commence at said railroad on lot 44, running thence to lot 175, where it would terminate, but at what particular place or site on lot 175 he did not know and had not determined; that they wanted the tramway to haul timber over to their mill at Normandale ; that it was necessary for the tramway to go through lot 73, because it would go through the center of the applicant’s land in that vicinity; that they could build the tramway from the point of starting to said terminal point over their own land, but it would be more expensive; and that a man named Cannington was in possession of the lot, and it was claimed by petitioner and Evans also. The errors alleged in the petition for certiorari were, that the ordinary erred in overruling the demurrer and in granting the application and appointing appraisers.
   Judgment affirmed.

DeLacy & Bishop, for plaintiff in error.

Smith & Clements, contra.  