Almand v. Atlanta Consol. St. Ry. Co.

• Decision Date: 25 July 1899
• Parties: ALMAND et al. v. ATLANTA CONSOL. ST. RY. CO. et al.
• Court: Georgia Supreme Court

34 S.E. 6

108 Ga. 417

ALMAND et al. v. ATLANTA CONSOL. ST. RY. CO. et al.

Supreme Court of Georgia

July 25, 1899

Syllabus by the Court.

1. When a street-railway company has power, under its charter, to lay its track along the streets of a city, the city authorities may consent to such use of its streets by the street-railway company, although there may be no express power in the charter of the city authorizing it to grant such a privilege.

2. The general rule is that, when a municipal corporation is created, it becomes vested with jurisdiction over the territory embraced within its corporate limits, and the mere fact that there has been a valuable improvement made by the county authorities on one of the streets of an incorporated city does not oust the municipality of its jurisdiction over such street. The above is true notwithstanding the street improved was before the incorporation of the city a part of an established public road of the county.

3. The rulings on the admission of evidence were not erroneous. The evidence rejected, even if admissible, should not have affected the result reached, and, considering the case as a whole, there was no error in refusing the injunction.

Error from superior court, Fulton county; J. S. Candler, Judge.

Suit by M. W. Almand and another against the Atlanta Consolidated Street-Railway Company and others. Judgment for defendants. Plaintiffs bring error. Affirmed.

Hamilton Douglas, D. S. Craig, and Culberson & Willingham, for plaintiffs in error.

Goodwin & Hallman, C. L. Pettigrew, and J. H. Pitman, for defendants in error.

COBB J.

Mrs Almand and J. B. Hardin brought their petition to the superior court of Fulton county, alleging, in substance, as follows: Petitioners are residents and taxpayers of Fulton county, and bring this, their petition, in behalf of themselves and all others in a like position. The county of Fulton has lately graded and straightened a certain public road in the county, commonly known, and which will be hereinafter referred to, as the "Chert Road." This road runs through, and several miles beyond, the town of Oakland City, in the county, and passes the United States barracks, and has been for a half century or more, and is now, one of the great public highways of traffic and commerce of the state. From the terminus of Lee street, in the city of Atlanta, along the chert road, to where the line of Oakland City extends, is 1,600 feet, which space of road is directly under the undisputed supervision and control of the board of roads and revenues of the county of Fulton. The chert road was constructed at very great expense to the citizens of the county, and is built of a substance in the nature of cement which produces a road of inestimable value, both as a driveway and for transporting farm and other products in heavily loaded wagons. The road was laid out and constructed many years before Oakland City was incorporated, but it has been paved with chert since the incorporation of the town. The county has never surrendered control over that portion of the chert road in Oakland City, nor did this village contribute in any manner whatsoever to the construction of the road, which was built at an expense, as petitioners are informed, of from $8,000 to $10,000 per mile. On February 4, 1899, the mayor and council of Oakland City made an alleged grant to the Atlanta Consolidated Street-Railway Company of a franchise to lay its tracks and run its cars longitudinally along the chert road from the northern to the southern limits of the town, which alleged grant was made on condition that the railway company should first widen certain portions of the chert road for a space of six feet on the west side, and pave the same in as good a manner as the present road is paved, pavement and graded sidewalks to be put in as good condition as the present sidewalks at the expense of the railway company, and the necessary land to be secured before the company disturbs the road south of Oakland avenue. The railway company was to secure a space of six feet, commencing from Oakland avenue, in Oakland City, and extending to the end of its line at the United States barracks. Between these points Mrs. Abi Mims owns about six feet, and the railway company has not secured, or attempted to secure, from her this space, which abuts the chert road, and is subject to the conditions named above. These were conditions precedent to the commencement of any work by the railway company, and none of them have been performed. The mayor and council of Oakland City have no jurisdiction over the chert road, and have no legal right to grant a franchise to the street-railway company, as the authorities of the county have never surrendered control over the road, and the charter of the town does not confer upon it authority to exercise control over the road; hence the alleged grant of a franchise to the railway company is ultra vires and void. The county authorities have never granted any franchise to the railway to lay its tracks along such road, but, though they have been appealed to by petitioners to do so, neither they nor the mayor and council of Oakland City have taken any steps to prevent the railway company from laying its tracks along the road. To allow the railway company to disturb the chert road by digging it up will irreparably damage such road, in this: Chert, when once broken, can never be relaid with fresh chert, and made to adhere the new to the old, as when first laid; which fact will necessitate the expenditure of large sums of money from year to year by the county to keep the road in repair. The running of cars over the road will materially shorten the life of the road, and completely destroy that portion of the road occupied by the tracks of the railway company. The running of cars would also be a public nuisance, and would be a constant menace to the lives and limbs of persons driving over the road, by reason of the narrowness of the road in many places. The railway company operates its cars by electric power. It has not exercised the right of eminent domain in and along the proposed route along the chert road, and has not taken any steps to condemn the property. A large portion of the territory through which the railway company proposes to construct its line of road is outside of, and not included in, any corporate town or village or city, but is in the county proper. Two steam-railroad companies and one electric street-line company run in their accommodation cars along by the side of, and parallel with, the proposed route of the street-railway company, and the public is afforded ample transportation facilities for all travel along the chert road at the same cost and expense to the public as the street-railway company would give. The chert road is in daily and constant use as a business and pleasure thoroughfare, and the street-railway company never having obtained a franchise from the authorities of the county to lay its track along such road from terminus of the road, in the city of Atlanta, to the line of Oakland City, and should such consent not be given, the tearing up of the road in Oakland

City would be of no use to the railway company, and would render the same less easy for use by the public. The prayers of the petition were that the street-railway company be enjoined from disturbing, or in any manner interfering with, the chert road, either for the purpose of laying its poles along the sides of the road, or by removing any of the chert from the surface of the road, for the purpose of laying its tracks or operating its cars thereon; that the franchise or license granted the railway company by the mayor and council of Oakland City be declared to be null and void; that the mayor and council of Oakland City be enjoined from making any further franchise or grant to the street-railway company to lay its tracks or run its cars over the chert road; and for general relief. The plaintiffs amended their petition by alleging that the street-railway company was, under its franchise from the mayor and council of Oakland City, to obtain the land necessary for widening the road before disturbing the road south of Oakland avenue; that a portion of this space has not been secured; that the street-railway company could easily construct its road alongside of, and within 75 feet of, the chert road. It is also alleged that the street-railway company has no right, power, or authority vested in it to extend its line and operate its road along the proposed route, and that, having no authority to so extend its line or road, so doing would be a continuing public nuisance and a tort. Mrs. Abi Mims filed an intervention in the cause, making certain allegations, and joining in the prayer for injunction; but, as she is not a party plaintiff in error in this court, it is unnecessary to set out the allegations of her intervention.

The defendant railway company answers, denying the material allegations contained in the petitions, and averred that the mayor and council of Oakland City had authority to grant to it a franchise to lay its tracks along the chert road in that municipality; that it had authority to accept such franchise; and that it is prepared and proposes to comply with the conditions of the grant.

The mayor and council of Oakland City answered, also denying the material allegations of the petitions, and averring that they had complete authority to grant the franchise, and that the railway company was excavating and preparing to lay its tracks under the authority of the mayor and council, and that this authority is sufficient, complete, and exclusive; that the village of Oakland, upon its incorporation, adopted the road as one of its streets, and has ever since had regular work done thereon by...