A private railroad company does not get to exercise the government’s power of eminent domain for the benefit of a private business. But in one small town in Georgia, that’s exactly what a railroad company is attempting to do. To bring rail service to one privately held rock quarry, the Sandersville Railroad Company wants to drive a track straight through the heart of several parcels of property in the small town of Sparta, Georgia—including parcels that have been in the Garrett and Smith families for generations. Sandersville Railroad proposes to use the state of Georgia’s power of eminent domain to forcibly take from the Smiths and Garretts the land that Sandersville Railroad wants for the track.
Sandersville Railroad is not a Georgia state agency, however; it is a private company. Under Georgia law, before the railroad can exercise the power of eminent domain, it must get permission from the Georgia Public Service Commission. Under Georgia law, private railroad companies can use the power of eminent domain only for a public use—but grabbing land that belongs to others to build a track to service private interests is not a public use. That’s why the Garretts and the Smiths have teamed up with the Institute for Justice to stand up to Sandersville Railroad’s attempt to wield the state’s power of eminent domain to take their generational land. They are asking the Commission to deny Sandersville Railroad’s request for authority to take their land to build the track because it is not a public use.
William R. Maurer
Managing Attorney of the Institute for Justice Washington Office
Communications Project Manager
Cara Di Silvio
Litigation Project Coordinator
Get in touch with the media contact and take a look at the image resources for the case.Dan King Communications Project Manager [email protected]
Don and Sally Garrett live in the rural town of Sparta, Georgia, on land that has been in Don’s family since the 1800s. Don’s ancestors fought through depression, war, famine, and natural disasters to hold onto the land, because they saw the land as an inheritance. Don has lived on the land for all but four of his 75 years. He and Sally raised their sons there and intend to leave it to them. The Garrett “home house”—the house which Don’s grandfather built, and in which Don grew up—sits in a quiet spot on the land that is not far from Don and Sally’s house. The Garrett home house has already been deeded to their eldest son, a seven-times-deployed retired United States military veteran. Sandersville Railroad proposes to run a railroad track approximately 200 yards from the back steps of the Garrett home house, cutting the Garretts’ land in half.
The Garretts refused to sell the land to Sandersville Railroad, believing it is their right to keep their land as it is—whole and complete—for the next generation. Because Sandersville Railroad has not been able to get the land from the Garretts voluntarily, it has asked the Georgia Public Service Commission to give it permission to simply take the Garretts’ land against the Garretts’ will, through the power of eminent domain.
Sandersville Railroad Company has so far only asked the Commission for permission to take the Garretts’ land. But Sandersville in fact needs to obtain acreage from 18 different parcels to complete its track. Those parcels include land owned by members of the Smith family.
The land that Sandersville wants has been in the Smith family for 100 years. It is land that was once part of the Dixon cotton plantation, where Helen Smith’s mother was born a slave. In the 1920s, Helen’s husband James Smith bought the land, and together they farmed it and raised their family on it. James and Helen held onto the land as a promise. For them, it meant independence and sustenance, and a first step toward building generational wealth.
James and Helen admonished their children—who admonished their children—to “keep the land in the family.” And they have. Blaine and Diane Smith own the parcel on which the Smith home house sits. Blaine and his five siblings grew up in the Smith home house. Blaine’s cousin Marvin Smith and his wife Pat also own a nearby parcel.
Sandersville Railroad is targeting the Smiths’ parcels as it is targeting the Garretts’. The proposed land grab will bisect their land, severely degrade their use and access, destroy the properties’ emotional and generational significance, and irretrievably devalue the land’s inherent worth.
Eminent Domain & Private Railroad Companies
In the United States, eminent domain is the power of the government to take away someone’s private property. Eminent domain is a sovereign power—a power that inherently belongs to the state. But states often delegate the power of eminent domain to private entities. For instance, a power company may be a private entity, not an agency of the government, but may nevertheless be permitted by the state to use the state’s eminent domain power to procure land to run things like pipelines or power lines.
Sometimes, however, private companies want to acquire land for something that is not a public use. That is eminent domain abuse.
When the power of eminent domain is abused, it is highly destructive of people’s right to retain and use their private property. It is often devastating to the lives of those whose property is taken. In the United States, the history of eminent domain is one of destruction of minority neighborhoods, particularly during the urban renewal disasters from the late 1940s to the 1970s. Even more recently, eminent domain is frequently employed against people who have less income, less education, less resources—and less ability to fight back. 1 That’s why the Institute for Justice seeks to restore strict limits for when the government—and private companies—can use eminent domain.
Georgia delegates the power of eminent domain to private railroad companies, which, for purposes of eminent domain in Georgia, are considered public utilities and when they act as common carriers—meaning when they provide service to all members of the public at rates set by the government. However, railroad companies cannot take land just because they are considered a public utility—they can only take land for public use to provide services to the public. Under Georgia statute and court decisions, private use of land acquired by a railroad through condemnation is not allowed. 2 Georgia courts have recognized that railroads “cannot exercise the power of eminent domain to acquire private property to serve a mere private use” 3 and that land is not taken for a public use when the “purpose of condemning the property is for the construction of a railroad . . . for only one customer of the railroad[.]” 4
Sandersville Railroad’s Proposed Track Does Not Serve a Public Use
In Sparta, Sandersville Railroad wants to take land belonging to the Garretts and the Smiths, and many others. The land will be used for a spur track, which is a short track leading from a main railroad and dead-ending at a certain point. In Sparta, the end of the proposed spur track is the Hanson Quarry, which is a rock mine that is owned and operated by a private company. Sandersville Railroad, also a private company, is calling the spur track the “Hanson Spur” because the Hanson Quarry will be the overwhelming (and perhaps only) user of the Hanson Spur. That the railroad intends to use the spur to provide benefits to the quarry is not disputed—Sandersville Railroad says the Hanson Spur will “help the Hanson quarry . . . increase output” and “allow [the Hanson Quarry] to deliver its aggregate (crushed rock) product more efficiently to customers outside the region[.]” 5
Helping a private company make more money is not a public use. The Smiths, the Garretts, and the other Spartans whose property is targeted by Sandersville Railroad have a right to retain their land, use it as they see fit, and leave it to their children as their parents left it to them, if that is what they choose. A private railroad company does not have the right to take someone’s property if the taking is not for public use.
Sandersville Railroad is not a Georgia state agency; it is a private company. Therefore, per Georgia law, Sandersville must get permission from the Georgia Public Service Commission before it can exercise the power of eminent domain. On March 8, 2023, Sandersville Railroad filed a petition with the Commission, asking the Commission to allow Sandersville to take Don and Sally’s property to build the Hanson Spur. The Commission’s decision regarding the Garretts’ property will affect the rights of Blaine and Diane, Marvin and Pat, as well as many others, to retain their properties.
Sandersville’s attempt to take private property for private use is part of a growing national trend. At the beginning of this century, eminent-domain abuse largely took the form of takings with the express purpose of handing the land over to different private owners. Indeed, an IJ study published in 2003 demonstrated some 10,000 instances of this sort of eminent domain abuse in just five years. That all changed in the wake of the Supreme Court’s widely reviled decision in Kelo v. City of New London. After that case made clear that the federal courts would not stand in the way of governments taking property from the politically powerless simply to hand it over to the powerful, IJ lead a national effort to get states across the country to reform their laws to stop this sort of abuse. And 47 states—including Georgia—heeded the call, with new laws, constitutional amendments, and court decisions working to make Kelo-style takings harder or even impossible. But that has not completely ended eminent domain for private gain. It has, in some places, driven it underground, as would-be condemnors announce that they need eminent domain to build things that look like traditional public uses like roads or utilities when the real purpose of the taking is simply to benefit a specific favored private business.
That is exactly what is happening here, as Sandersville’s railroad will serve not the public but instead a single private interest. And that is why the Garretts and the Smiths have joined forces with the Institute for Justice to stand against eminent domain abuse, stand up for private property rights, and let the Georgia Public Service Commission know that it should deny Sandersville Railroad’s petition to take the Garretts’ property.
The Intervenor-Property Owners
The property owners who are intervening at the Georgia Public Service Commission to stop the Commission from allowing Sandersville Railroad to take their property through eminent domain are Don and Sally Garrett; Blaine and Diane Smith; and Marvin and Pat Smith.
The petitioner at the Georgia Public Service Commission is Sandersville Railroad Company.
The Garretts and the Smiths are asking Georgia Public Service Commission to deny the Railroad’s request for authority to take land for the spur because it is not a public use.
The Litigation Team
The lead attorney on this case is Institute for Justice Senior Attorney Bill Maurer. 6 Also on the team is Institute for Justice Litigation Fellow Betsy Sanz. 7
About the Institute for Justice
The Institute for Justice (IJ) is the national law firm for liberty and a prominent defender of private property rights. IJ is the leading advocate against eminent domain abuse.
IJ represented Susette Kelo and other homeowners in New London, Connecticut, to save their homes from being demolished due to abuse of eminent domain in the now infamous Kelo v. New London 8 decision. Since Kelo, and largely due to IJ’s efforts, 47 states have strengthened their protections against eminent domain abuse, either through legislation or state supreme court decisions. IJ continues to represent property owners across the nation against eminent domain abuse, 9 and has successfully helped clients resist eminent domain abuse by Atlantic City, New Jersey; 10 the St. Paul, Minnesota Port Authority; 11 the Nashville Metropolitan Development and Housing Agency; 12 the city of Elberton, Georgia; 13 the city of Riviera Beach, Florida; 14 and others.