accomplished in no way except that which is proposed. It involves the problem of creating light, heat, and power at a remote point, for delivery by transmission over wires to the consuming public in neighboring and distant districts and cities, thus becoming necessary to pass over the lands of others. Thus we see the public purpose is twofold; for it has the object, first, to develop the resources of the state by bringing its great water powers from a condition of waste to one of profitable employment; and, second, to supply the demands and necessities of the public with light, heat, and power.

There are many respectable authorities that hold that the right of eminent domain may be exercised wherever the public interest will be subserved, when directed to purposes tending to the development of the natural resources of the state, or tending to the accommodation of the public welfare and convenience, and it seems to us that when the Legislature saw the opportunity of directing the attention of science, industry, and art to the water powers of the state, with a view to supplying our people with such utilities as light, heat, and power for the promotion of our domestic and industrial welfare, its action in lending the state's aid to the end of affording, the necessary right of way over the private lands of individuals was fully justified under the law which permits the taking of private property for public uses. We do not mean to say that a use which only remotely tends to the public good or convenience will justify the exercise of the state's right of eminent domain. Such a position would lead to unreasonable results, for there is scarcely an industrial enterprise which has not the features of public benefit; but such is not the case which we now have under consideration. Here is the direct benefit to the state in developing its natural resources, and here are the resulting uses to the public, which are so direct and far-reaching as to extend to every industrial enterprise and to the home of every individual. We are safe in holding that, under the conditions of this day and time, the Legislature did not unconstitutionally exercise its power in passing the act now under review. This act is only directed to a coercion of those who will not, for the common good, submit their property to the right of passage. It provides just compensation to them, but authorizes compulsory submission to the interests and welfare of the state and the good of the public. It may be noted that the pretension of the act is to go no further than to provide for the acquisition of an easement over the land of another, which is authorized to be enjoyed only for a public use. Indeed, the Constitution prohibits any further taking of the owner's property without his consent, and it must follow that any use of the property for a purely private purpose would not fall within the pale of the act Such private use, if any should be at

tempted, could not be justified under the act, and would be a trespass as against the owner. The possibility of a use which is not authoriz ed by the act could not serve to render unconstitutional those provisions of the act which are the real object of the legislation and which are themselves constitutional. It is readily seen that one of the essential and constituent obligations upon the part of the individual who attempts to exercise the right of eminent domain under this act is that he shall serve all of the public fairly and without discrimination. Without such public service, his right would have no sanction under the act. The conclusion just announced follows as a matter of logic from a consideration of the case at bar, and is well supported by authority. See, in this connection, Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721; State ex rel. Webster v. Neb. Telephone Co., 17 Neb. 126, 22 N. W. 237; Zanesville v. Gaslight Co., 47 Ohio St. 1, 23 N. E. 55; Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240: City of St. Louis v. Bell Telephone Co., 96 Mo. 623, 10 S. W. 197, 2 L. R. A. 278, 9 Am. St. Rep. 370; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173; Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 408, 9 Sup. Ct. 553, 32 L. Ed. 979; Munn v. Ill., 94 U. S. 113, 24 L. Ed. 77; Snell v. Clinton Elec. Co. (Ill.) 63 N. E. 1082, 89 Am. St. Rep. 341; Cincinnati, H. & D. R. Co. v. Village of Bowling Green, 57 Ohio St. 336, 49 N. E. 121, 41 L. R. A. 422; 2 Beach on Priv. Corp. §§ 834-836.

Under the particular conditions then existing, this court in Loughbridge v. Harris, 42 Ga. 500, said: "We do not think a mill, although it has some of the attributes of public use and is regulated by law for certain definite purposes, can be regarded such public use as the Constitution recognizes, to authorize the exercise of this great constitutional power." Afterwards, in the case of Hand Gold Mining Co. v. Parker, 59 Ga. 424, under the particular conditions then existing, this court held that a provision in a charter of a mining company authorizing the company, upon just compensation to the owner, to condemn over the lands of another a right of way for the carriage of water necessarily used in gold mining, was not an unconstitutional exercise of the right of eminent domain. This ruling was put upon the principle that the development of the mining resources of the state, and the production of the metal in which our constitutional currency is stamped, are of public benefit. The case last cited distinguishes the case of Loughbridge v. Harris. Upon the subject of what is or is not a public use, the following other decisions of this court may be mentioned: Mayor of Macon v. Harris, 73 Ga. 428, Butler v. Thomasville, 74 Ga. 570; Hopkins v. Fla. Cen. & Peninsular R. R., 97 Ga. 113, 25 S. E. 452; Garbutt Lumber Co. v. Georgia and Alabama Ry., 111 Ga. 714, 36 S. E. 942;

Jones v. Venable, 120 Ga. 1, 47 S. E. 549. These cases are not in their facts like the case at bar, and in view of the difference, and inasmuch as these cases arose under different conditions from those which at this time command our attention, we do not deem it necessary to make further reference to them. The act being constitutional, and the facts showing the contemplated use of the land of the plaintiff to be designed for no other than public purposes, it follows that the court did not err in refusing the injunction.

Judgment affirmed. All the Justices concur.

(125 Ga. 386)

LANE v. LANE. (Supreme Court of Georgia. May 16, 1906.) WILLS-WITNESSES-Signature.

Under the decision in Brooks v. Woodson, 13 S. E. 712, 87 Ga. 379, 14 L. R. A. 160, "witnesses to a will must subscribe their names as witnesses after the will is signed by the testator; there being nothing to attest until his signature has been annexed. It makes no difference that the signing and attestation are each part of one and the same transaction." This ruling is adhered to, and controls the present case.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, § 325.]

(Syllabus by the Court.)

Error from Superior Court, Cobb County; Geo. F. Giber, Judge.

W. W. Lane propounded a will for probate, and W. T. Lane filed objections. From an order refusing probate, the propounder brings Affirmed.

error.

A will was propounded for probate in solemn form. It appeared from the testimony introduced by the propounder that the paper propounded was not signed by the alleged testatrix until after it was signed by the witnesses thereto, though there was evidence to the effect that the signing by the testatrix and by them all was a part of the same transaction; she having signed just after the last witness had subscribed his name. The presiding judge held that the paper was not valid as a will, and not entitled to probate, and directed a verdict accordingly. pounder excepted.

The pro

J. S. James, for plaintiff in error. J. E. McGelley, for defendant in error.

LUMPKIN, J. (after stating the facts). This case is controlled by the decision in Brooks v. Woodson, 87 Ga. 379, 13 S. E. 712, 14 L. R. A. 160, and it in turn rests upon that in Duffie v. Corridon, 40 Ga. 122. We are asked to review and reverse those decisions, but we are content to adhere to them. It is true that there is a conflict of rulings as to whether a will is valid if the signing by the testator and the attestation by the witnesses are each a part of the same transaction, although the testator may not sign first. In the opinion in the case above cited, Bleckley, Chief Justice, said: "To witness a

future event is equally impossible, whether it occur the next moment or the next week." The note following the decision collects a number of authorities and shows that the view taken in this state by no means stands alone, but has the support of other courts of last resort. See, also, Marshall v. Mason, 57 N. E. 340, 176 Mass. 216, 79 Am. St. Rep. 305; Simmons v. Leonard, 91 Tenn. 183, 18 S. W. 280, 30 Am. St. Rep. 875; Welty v. Welty, 8 Md. 15. The text-writers express different opinions on the subject of where the weight of authority is to be found. This will readily be seen by comparing Pritchard on Wills, 217; Schouler on Wills (3d Ed.) § 328; Underhill on Wills, § 195; Page on Wills, § 222.

When it is considered how ancient is the practice of having attesting witnesses to wills, the vast number of them which have been made, and the almost infinite variety of circumstances surrounding their execution, it is not surprising that some diversity of views should have arisen. As an illustration of the antiquity of the practice of attesting wills, it is said that recently some wills have been unearthed in Egypt which were made in the forty-fourth year of the reign of Amenemhad III (B. C. 2550), and that they were witnessed by two scribes, with attestation clauses very similar to those now In use. Rood on Wills, § 12. We are satisfied to rest the present case upon the former decisions of this court.

Judgment affirmed. All the Justices concur.

PALIN v. COOKE.

(125 Ga. 442)

(Supreme Court of Georgia. May 16, 1906.) LIENS REPAIRS OF VEHICLES-FAILURE TO RECORD.

Where an owner of several omnibuses, carriages, buggies, and other vehicles entered into a contract with a mechanic by which it was agreed that the latter should furnish materials and repair all of such personal property from time to time as it might be necessary and as the owner might require, and that the mechanic should deliver the property thus repaired to the owner, and should be paid for such materials and repairs at such time as he (the mechanic) should elect which should be whenever he demanded payment of the amount, it being understood that the indebtedness was a running account and should become due on demand, and where, in pursuance of such contract, the mechanic furnished materials and made repairs from time to time on the different vehicles, and delivered possession thereof to the owner, not recording any lien within 10 days from the repairing of any particular vehicle, but at the close of a year from its making the contract was terminated, and he then made demand for payment, recorded claims of lien, and made affidavit for the purpose of foreclosing it, held, that this did not give the mechanic a lien upon the property.

(Syllabus by the Court.)

Error from Superior Court, Thomas County; R. G. Mitchell, Judge.

Action by A. W. Palin against A. H. S. Cooke. Judgment for defendant, and plaintiff brings error. Affirmed.

Theo. Titus, for plaintiff in error. S. A. Roddenberry and Roscoe Luke, for defendant in error.

LUMPKIN, J. Lien laws are strictly construed, and one who claims a lien must bring himself clearly within the law. Hawkins v. Chambliss, 116 Ga. 813, 43 S. E. 55. By the act of February 24, 1873 (Acts 1873, p. 44, § 8), it was declared that the lien of a mechanic must be asserted by the retention of the property, and not otherwise. Hurley v. Epps, 69 Ga. 611. By the act of 1884 (Acts 1884-85, p. 43) this was so amended as to declare that the lien may be asserted by retention of the property, or the mechanic may surrender such personal property and give credit, in which event the lien shall be enforced in accordance with the provisions of what is now section 2816 of the Civil Code of 1895, which provides for the enforcement generally of liens on personal property. If possession of the property is surrendered to the debtor, the mechanics must record his lien within 10 days after such work is done and material furnished. Civ. Code 1895, § 2805. It is not a compliance with the law for a mechanic to do different jobs of work in the way of repairing various vehicles at different times, deliver possession to the debtor, fail to record the lien within 10 days, and take no action until he desires at some indefinite period to collect his money. A general contract to do repair work on various vehicles, as they may need it, for a year, or for some indefinite time, does not constitute the work so done a single job, so as to authorize the recording of a lien on all the vehicles within 10 days after the expiration of the term of such contract by lapse of time or action of the parties. Nor can the debtor and creditor preserve a lien on the property in favor of the latter by an agreement to the effect that the bill for such repair work shall become due when the mechanic may so desire and demand payment. To permit one creditor to retain indefinitely a right to a lien, not by compliance with the statute, but by virtue of some agreement with the debtor, and thus to reserve the secret power of having a lien or not as he may wish, is not according to either the letter or the spirit of the lien law. The decision in New Ebenezer Association v. Gress Lumber Co., 89 Ga. 125, 14 S. E. 892, is not applicable to this case. There materials for the improvement of real estate were furnished under one contract and as a part of the same improvement, and, though the items were furnished at different times, the record of the lien within three months after the latest item was furnished was held sufficient. This is unlike the doing of separate and distinct repairs at different times upon different vehicles, as they may need it, although one contract may have provided therefor.

Another creditor of a common debtor having filed his counter affidavit for the purpose

of contesting the claim of lien asserted in this case, in accordance with Civ. Code 1895, § 2816, par. 6, the presiding judge, on motion of such creditor, properly held that the affidavit of the plaintiff, showing substantially the facts set out in the headnote, was insufficient, and dismissed the levy.

Judgment affirmed. All the Justices con

cur.

(125 Ga. 483)

ATLANTIC & B. RY. CO. v. JOHNSON. (Supreme Court of Georgia. May 16, 1906.) 1. CARRIERS-INJURY TO PASSENGER-ACTION FOR DAMAGES-INSTRUCTIONS.

The charge, in so far as it related to the question of the liability of the defendant,_was not as elaborate as it might have been. Some portions of it were lacking in perspicuity. When the extracts upon which error is assigned are considered in connection with the entire instruction upon the subject, any apparent inaccuracies were not of such a character as to mislead the jury as to the law of the case or the defenses of the defendant. There was a distinct instruction that if the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant's negligence there could be no recovery, and that if the plaintiff was not injured at all no recovery could be had.

2. SAME EVIDENCE.

The evidence authorized the verdict, and the discretion of the trial judge, exercised in refusing a new trial, will not be controlled. (Syllabus by the Court.)

Error from City Court of Baxley; J. I. Carter, Judge.

Action by Mary E. Johnson against the Atlantic & Birmingham Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Mrs. Mary E. Johnson brought suit against the Atlantic & Birmingham Railroad Company for personal injuries inflicted by the sudden starting of the train upon which she was a passenger, after she had gone out upon the platform to alight at her destination. A verdict for $425 was rendered by the jury, and the defendant moved for a new trial. The motion was based on the general grounds and on two exceptions to the charge. A new trial was refused, and to this judgment the defendant excepted.

J. L. Sweat, N. J. Holton, and Rosser & Brandon, for plaintiff in error. Thomas & Parker and W. W. Bennett, for defendant in

error.

COBB, P. J. (after stating the foregoing facts). The court charged as follows: "The plaintiff is required to satisfy you that she was injured and damaged by the defendant, and, when she does this, then the presumption of negligence arises against the defendant, and it is incumbent upon it to show that it was not to blame. If the defendant fails to do this, it having been made to appear that an injury was inflicted by it, its agents or employés, she should recover such damages

as in your judgment would be reasonable and just. This is left to your enlightened consciences." This charge is excepted to for the reason that it precludes the defendant from rebutting the presumption of negllgence against it, except by showing that it was not to blame, when such presumption may be rebutted by showing that the plaintiff was not injured, or that, if injured, the injury was due to her own negligence, or that by the exercise of ordinary care she could have avoided the injury. The above excerpt from the charge, standing alone, might be subject to criticism; but the charge as a whole opens up to the defendant all the lines of defense from which it is apparently precluded by considering the above portion of the charge alone. It is also contended that the above charge left the determination of the issues between the parties to the enlightened consciences of the jurors, instead of the evidence. We do not think this a just criticism. The amount of damages, if the plaintiff was found to be entitled to damages, was left to the enlightened consciences of the jurors. The damages claimed consisted only of pain and suffering. The charge was therefore, in this respect correct.

2. Error is assigned upon the following charge: "You understand the allegations, gentlemen, and if you find that the defendant company is liable in damages, you considering and finding that there has been such in this case that the plaintiff has suffered great pain and anguish, as alleged in the pleadings and the contentions of the plaintiff, then she would be entitled to recover such an amount which is left to the enlightened consciences of the jury as to the amount." This is excepted to upon the ground that it left to the consciences of the jurors the right to find a verdict for the plaintiff if the plaintiff had suffered great pain and anguish. The portion of the charge quoted is not clear. Very probably its lucidity and grammar have suffered in the transcribing and copying incident to making up the record. But we think the intention of the court, and the meaning conveyed to the jury, was that the amount of damages, if damages were recoverable, was left to the enlightened consciences of the jurors. There was evidence warranting the verdict, and we shall not control the discretion of the trial judge in refusing a new trial.

Judgment affirmed. All the Justices con

cur.

(125 Ga. 385)

DAVISON v. HERNDON. (Supreme Court of Georgia. May 16, 1906.) 1. BROKERS-RIGHT TO COMMISSIONS-FAILURE TO PERFORM CONTRACT.

If a loan broker made a contract with a customer to obtain a loan for the latter amounting to $1,500, for which the broker was to receive a commission of 5 per cent., and if he made an effort and failed to secure the loan,

and so informed his customer, and if he was then notified by the customer that the latter needed a loan of $1,600, and a new agreement was made between them to the effect that the broker was to obtain a loan of that amount and was to receive 5 per cent. thereof as his commission, and if he notified the customer that he had failed to negotiate the loan for $1,600, and thereupon the customer procured the money elsewhere, the broker would not be entitled to recover his commission, although he may have then negotiated so as to procure a loan of $1,500 for his customer.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Brokers, §§ 70-72.]

2. SAME.

The evidence in this case was sufficient to authorize the giving of a charge substantially in accord with the preceding note. 3. SAME.

The written request to charge, so far as applicable to the facts of the case, was sufficiently covered by the general charge.

4. APPEAL AND ERROR CONCLUSIVENESS OF FINDINGS.

While the evidence was conflicting and might have sustained a finding for the plaintiff, yet, the jury having found for the defendant, and the presiding judge having approved their findings, and there being sufficient evidence to support the verdict, this court will not interfere.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Appeal and Error, §§ 3948-3950.] (Syllabus by the Court.)

Error from Superior Court, Taliaferro County; H. M. Holden, Judge.

Action by James Davison against B. F. Herndon. There was judgment for defendAffirmed. ant, and plaintiff brings error. Jas. B. & Noel P. Park, for plaintiff in Hawes Cloud, for defendant in error.

error.

LUMPKIN, J. Judgment affirmed. All the Justices concur, except ATKINSON, J., who did not preside.

(125 Ga. 428)

CORKER v. STAFFORD. (Supreme Court of Georgia. May 16, 1906.) 1. APPEAL ASSIGNMENT OF ERROR-EXCLUSION OF DEED HARMLESS ERROR.

An assignment of error upon the exclusion of a deed tendered in evidence by the plaintiff in an action "for the possession of land" is without merit, when it is not made to appear that the deed would have established, or tended to establish, the plaintiff's title to the tract or parcel of land in controversy. The fact that the trial court may have excluded the evidence upon an objection that was not good in itself affords no reason for disturbing his ruling. 2. INJUNCTION-TRESPASS-EVIDENCE.

When, in such case, plaintiff and defendant claim under a common grantor, it is not error to exclude a deed conveying the land to a common grantor from his predecessor in title, as evidence of the former's title is immaterial. APPEAL-REVIEW-CONFLICTING EVIDENCE. The evidence authorized the verdict, and there was no error in refusing a new trial. (Syllabus by the Court.)

3.

Error from Superior Court, Decatur Coun ty; W. N. Spence, Judge.

Action by Hiram Croker against Lucinda