O.C.G.A. § 46-5-1 (2019)

Annotations

Cross references. - Similar provisions regarding exercise of power of eminent domain for construction, maintenance, etc., of telegraph and telephone lines along railroad rights of way, § 22-3-1 et seq. Grants by State

Properties Commission of revocable license to encroach upon property under custody and control of State Properties Commission, § 50-16-42.

JUDICIAL DECISIONS Editor’s notes. - See Blue Ridge Tel. Co. v. City of Blue Ridge, 161 Ga. App. 452, 288 S.E.2d 705 (1982), which states that the dicta contained in City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953), stating that by virtue of this Code section a telephone company holds a right to use the streets of a municipality by virtue of a franchise from the state, was unnecessary to the opinion in that case, was unsupported by any citation of Georgia law, and was incorrect. Construction of language. - The word ‘‘or’’ as used in former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1) must be construed as having a conjunctive, and not a disjunctive, meaning. Comer v. AT & T, 176 Ga. 651, 168 S.E. 786 (1933). Former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1], to the effect that any telegraph or telephone company, in the exercise of power of eminent domain, shall have right to construct, maintain, and operate telegraph or telephone lines, or both, where necessary ‘‘under or over’’ any private lands in this state, must, upon a consideration of the entire section, be construed as authorizing the company to construct, maintain, and operate its lines both under and over such lands, where necessary for public use served by such

company. Comer v. AT & T, 176 Ga. 651, 168 S.E. 786 (1933). Term ‘‘other fixtures’’ of telephone line includes telephone wires. Southern Bell Tel. & Tel. Co. v. Scogin, 136 Ga. App. 318, 221 S.E.2d 203 (1975). Fact that cable company transmitted more than traditional voice communications did not take the cable company outside the realm of O.C.G.A. § 46-5-1(a). Davis v. Williams Communs., Inc., 258 F. Supp. 2d 1348 (N.D. Ga. 2003). City could not by contract override police power imposed on it. - Whatever construction could be placed on any contractual franchise right granted by the city to the telephone company, the city could not by contract or otherwise override the police power imposed in it. Neither could the state through former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1]do away with its constitutional power to require the plaintiff telephone company to remove its underground conduit from a specific locality to another locality at its own expense, where such removal is necessitated for the safety, protection, welfare, and health of the citizens. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). Municipality cannot divest itself of police powers conferred upon it by Legislature. -

The grant by a municipality to a public service company of the right to use streets does not divest the municipality of its police power over the grantee in relation to its use of such streets. Furthermore, it is well settled that it is not within the power of a municipality, in any franchise it may confer upon or contract with, a public utility company, to divest itself of its governmental police power, the exercise of which is necessary for the public welfare and the preservation of the public safety. Nor can a municipality grant away or limit the police powers conferred upon it by the legislature. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). Right of telegraph or telephone company to use public roads of this state in order to construct its lines for transmission of interstate messages, granted by act of Congress, is to be enjoyed in subordination to public use and private rights, and subject to any lawful exercise of the police power belonging to the state or to its municipalities or counties. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). Location of telephone cables beneath street subject to future regulation. - As far as the location of the telephone cables underneath the particular street is concerned, it is subject to such future regulation as might be required in the interest of the public health and welfare. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). Fundamental common-law right applicable to franchise in streets is that a utility company must relocate its facilities in the public streets when changes are required by public necessity; and, although authorized to lay its pipes in the public streets, the company takes the risk of their location and is bound to make such changes as the public convenience and security require, at its own cost and charge. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). City can require company to remove facilities from street at expense of company. - A city can require a public service company, to which it has granted a franchise to use the streets of the city, to remove its facilities from a portion of one street to another location, where it appears that the portion of the street whereon such facilities are located is

closed and dedicated to the use of the municipal hospital, it appearing that the public health and welfare require the use thereof for hospital purposes; and that the company and not the city must bear the cost of removal and relocation. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). Telephone company acquires no indefeasible right to any street when granted franchise. - The telephone company, when a franchise to use the streets of a city for installing its telephone facilities is granted, acquires no indefeasible right to any particular street or part of a street and takes this grant subject to the right of the city to require a change of location of the telephone lines if good reasons exist therefor. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). Telephone company acquires right to general use of streets for installation of facilities. - The telephone company acquires by virtue of former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1) only the right to use generally the public streets of a city for the purpose of installing the facilities with which it furnishes telephone service to the public. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). ‘‘Ordinary use’’ of public streets and highways contemplates use as provided by law. - When the public streets and highways are used in such a manner as to violate the law, such use is not ‘‘ordinary.’’ Southern Bell Tel. & Tel. Co. v. Scogin, 136 Ga. App. 318, 221 S.E.2d 203 (1975). Temporary obstruction by telephone company not violative of public right to use street for travel. - The temporary obstruction of the street by the telephone company is not a violation of any right of the public to use the same for travel. Dekle v. Southern Bell Tel. & Tel. Co., 208 Ga. 254, 66 S.E.2d 218 (1951), overruled on other grounds, Peachtree-Cain Co. v. McBee, 254 Ga. 91, 327 S.E.2d 188 (1985). Uncompensated obedience to regulation not taking or damaging of private property. - Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not a taking or damaging without just compensation of private property, or of private property affected

with a public interest. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). Power, telephone, and telegraph companies all have power of eminent domain, and could exercise that power to acquire the right to erect their lines upon the railroad’s right of way. That they choose to acquire by contract such right, as against the railroad, does not render the railroad company liable for their alleged failure also to compensate the plaintiff for the taking or damaging of plaintiff ’s property by their erection of power and communication lines on the railroad’s right of way. Tompkins v. Atlantic Coast Line R.R., 89 Ga. App. 171, 79 S.E.2d 41 (1953). Intent of former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1) was was that the owner of a telephone pole is not liable for its alleged negligent placement in a public road right of way where such pole was located with the approval of the county or municipal authorities and did not obstruct or interfere with the ordinary use of the public highway. This conclusion was further supported by former Code 1933, § 69-304 (see O.C.G.A. § 36-30-10). Southern Bell Tel. & Tel. Co. v. Martin, 229 Ga. 881, 194 S.E.2d 910 (1972). Maintenance of poles in middle of street does not constitute negligence as matter of law. - Since the city can lawfully authorize the erection of the poles in the middle of the street, the acquiescence by the city in the maintenance of the poles in the middle of the street, although they had originally been erected there by the power company in violation of the restriction placed by the city on the manner of their erection, amounts to a waiver by the city of the restriction which it had imposed upon the power company, and the maintenance by the power company of the poles in the middle of the street, while acquiesced in by the city, and where otherwise not unlawful, does not, as to persons lawfully using the street, constitute negligence as a matter of law. Southern Bell Tel. & Tel. Co. v. Martin, 229 Ga. 881, 194 S.E.2d 910 (1972). Municipality estopped by past actions from asserting that company without approval to use streets. - A municipality, by permitting the location and construction of the lines of a telephone or telegraph com-

pany along the streets and highways for a considerable length of time and dealing with the company so as to evince its approval of the occupancy of such streets and highways, may be estopped from asserting that the company has not procured its approval to use the streets. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953). City and company chargeable with any negligence resulting from condition. - Where the wires of a telephone company which were strung over the street of a city were lowered by the city and came into contact with highly electrically charged electric light wires and there remained, both the city, as creator of the condition, and the telephone company, by failing to discover the dangerous situation were chargeable with any negligence which arose by virtue of this condition of the telephone wire. Bleckley v. Western Carolina Tel. Co., 42 Ga. App. 110, 155 S.E. 83 (1930). Company not relieved of negligence created by placement of pole in dangerous situation. - The fact that a company has a legal right to place a pole within four inches of the paved portion of the highway insofar as the right to the use of the land occupied by the pole is concerned will not relieve it of negligence if the pole creates a dangerous situation. Blunt v. Spears, 93 Ga. App. 623, 92 S.E.2d 573, rev’d on other grounds sub nom. Southern Bell Tel. & Tel. Co. v. Spears, 212 Ga. 537, 93 S.E.2d 659 (1956). Cable company can contract with railroad to construct line along railroad’s right of way. - Cable company that possessed certificate of authorization from Georgia Public Service Commission that allowed it to exercise eminent domain under O.C.G.A. § 46-5-1(a) properly entered into contract with railroad, in lieu of eminent domain proceedings, to allow construction of communication lines along railroad’s rights of way; under Georgia law, the railroad could not have been held liable for entering into this contract. Davis v. Williams Communs., Inc., 258 F. Supp. 2d 1348 (N.D. Ga. 2003). Cited in Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 119 Ga. 354, 46 S.E. 422, 100 Am. St. R. 174 (1904); Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532, 83 S.E. 135 (1914); Georgia Power Co. v. Zimmerman, 133 Ga. App. 786, 213 S.E.2d 12 (1975).

OPINIONS OF THE ATTORNEY GENERAL Telegraph company must bear expense of moving. - Where a telegraph company occupies a railway right of way, it must bear the expense of moving if highway changes necessitate railway facility changes. 1958-59 Op. Att’y Gen. p. 190. Power of placing and operating poles and lines conferred by this section. - The only power sought to be conferred by former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1] was the power of placing and operating poles and lines along the public highways; it did not seek to vest the

power of operating telephone lines in telegraph companies, or vice versa. 1957 Op. Att’y Gen. p. 26. Telegraph and telephone companies must secure permission to utilize state streambed properties. - Former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1) did not authorize telegraph and telephone companies to utilize state-owned streambed properties without securing prior permission and making just compensation. 1970 Op. Att’y Gen. No. 70-169.

RESEARCH REFERENCES Am. Jur. 2d. - 74 Am. Jur. 2d, Telecommunications, §§ 2, 5, 10, 11. C.J.S. - 86 C.J.S., Telecommunications, §§ 33, 42, 54, 55, 56. ALR. - Authority from public official as affecting responsibility of public service corporation for infringing property rights, 1 ALR 403. Right and duty of telephone companies to make physical connection of exchanges or lines, 11 ALR 1204; 76 ALR 953. Regulations or provisions upon requiring physical connection of telephone lines, 16 ALR 352. Right to stretch overhead wires across street or highway, 54 ALR 480. Duty to furnish telegraph or telephone service to privately wired or equipped building, 56 ALR 794. Right of carrier to discriminate between telegraph or telephone companies, 60 ALR 1081. Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 ALR 679. Injury to traveler from collision with privately owned pole standing within boundaries of highway, 3 ALR2d 6. Condemner’s waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 ALR2d 724. Compensation for, or extent of rights acquired by, taking of land, as affected by condemner’s promissory statements as to character of use or undertakings to be performed by it, 7 ALR2d 364.

Liability of electric power or telephone company for injury or damage by lightning transmitted on wires, 25 ALR2d 722. Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 ALR2d 781. Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 ALR2d 791. Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 ALR2d 1292. Liability of public utility to abutting owner for destruction or injury of trees in or near highway or street, 64 ALR2d 866. Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility’s having power of eminent domain, 87 ALR3d 1265. Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 ALR3d 504. Liability of telephone company for injury by noise or electric charge transmitted over line, 99 ALR3d 628. Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 ALR4th 840. State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 ALR4th 68.

Placement, maintenance, or design of standing utility pole as affecting private utility’s liability for personal injury resulting

from vehicle’s collision with pole within or beside highway, 51 ALR4th 602.