Athens Terminal Co. v. Athens Foundry & Machine Works
| Decision Date | 08 October 1907 |
| Citation | 58 S.E. 891,129 Ga. 393 |
| Parties | ATHENS TERMINAL CO. et al. v. ATHENS FOUNDRY & MACHINE WORKS. ATHENS FOUNDRY & MACHINE WORKS v. ATHENS TERMINAL CO. et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A commercial steam railroad company cannot lay a railroad track longitudinally along the streets of a city without the sanction of the General Assembly. This sanction may be given either in the charter of the city or of the railroad company.
(a) Legislative sanction is not contained in the charter of the city of Athens.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§ 1465.]
Civ Code 1895, § 2167, par. 5, confers upon a railroad company incorporated under the general railroad law the power to construct its track longitudinally in the streets of a city for lawful use with the written consent of the municipal authorities.
Although the General Assembly may empower a commercial railroad company to occupy the streets of a town or city with the consent of the municipal authorities, yet such permission is subject to the constitutional restraint that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." If the property of an abutting landowner will be damaged by the laying and use of a track in the street, the railroad company must first pay or tender to such property owner just and adequate compensation for the damages consequential upon the construction of the track and the uses to which it will be put. Upon failure to pay or tender the amount of such damages, equity will enjoin the construction of the track.
[Ed Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 257.]
The facts developed before the judge on the interlocutory hearing were sufficient to support his finding that the plaintiff was not guilty of laches in applying for the equitable remedy of injunction.
[Ed Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 783.]
The provision in the charter of the city of Athens that the municipality "shall have full power and authority to open, lay out, widen, straighten or otherwise change the streets, lanes and alleys in said city, whenever the said mayor and council shall see proper to exercise said power," is sufficiently comprehensive to authorize a slight deflection of a street near one of its termini.
Error from Superior Court, Clark County; C. H. Brand, Judge.
Action by the Athens Foundry & Machine Works against the Athens Terminal Company. From the judgment, both parties bring error. Affirmed on both bills of exceptions.
This is an injunction suit, brought by the Athens Foundry & Machine Works against the Athens Terminal Company to restrain the latter from laying its track longitudinally in Foundry street, and from changing the course of Washington and Clayton streets, in the city of Athens. The Athens Terminal Company is chartered under the general railroad law, and owns in the city of Athens three blocks of property on the western side of Foundry street, lying between Broad street and Hancock avenue. The Athens Foundry & Machine Works owns property on the other side of Foundry street. The property of the Athens Terminal Company is intersected by Washington and Clayton streets. Washington street connects with Foundry street at a point opposite the gate which opens into the property of the Athens Foundry & Machine Works. Foundry street is about 40 feet wide. On January 3, 1906, the city of Athens passed an ordinance granting to George J. Baldwin and William W. Mackall, or their assigns, the right to construct a railroad track in Foundry street, to deflect Clayton and Washington streets, and to build warehouses and a freight depot, in accordance with certain plans submitted to the city. Work was begun in accordance with the ordinance within six months from the date thereof, and the property was excavated and graded, and at the time when the injunction suit was brought a large sum of money had been expended on the project. The Athens Terminal Company was chartered under the general railroad law on the 14th day of October, 1906. On January 14, 1907, Baldwin and Mackall transferred to the Athens Terminal Company all of their interests in the franchises granted by the city of Athens, and on April 19, 1907, the city of Athens ratified and confirmed the transfer, and passed an ordinance granting directly to the Athens Terminal Company all of the franchises which had been previously granted to Baldwin and Mackall, upon the same terms and conditions, with one exception, which is not material to this case.
The ordinance of the city of Athens required the paving of a portion of Foundry street, between Broad street and Hancock avenue, 16 feet in width, so as to leave a 6-foot sidewalk on the side of the street adjacent to the foundry works, and the street being opposite the Athens Foundry & Machine Works property, about 40 feet wide, leaving about 13 feet between the curb of the paved way and the property line of the Athens Terminal Company. The track in Foundry street is to be laid between the property line of the terminal company and the curb of the paved way. The foundry company claims to own a fee in Foundry street only to the center thereof, and the Athens Terminal Company claims to own the fee in the other half of the street adjacent to its property, so that the track, when laid in Foundry street opposite the Foundry Works, will be laid entirely on the fee of the street owned by the terminal company. Both Washington and Clayton streets will be deflected near their intersection with Foundry street, which is the terminus of each street. The ordinance provides that the city will do the necessary grading of Washington and Clayton streets. The Athens Terminal Company will pave those portions of Washington and Clayton streets which run through its property, and will open a new thoroughfare between Board street and Hancock avenue, on the back of its property, and will pave the same. None of the tracks which lead off from Foundry street into the terminal property will rest on any part of either Washington or Clayton street as deflected, but will be entirely upon the property of the terminal company. The Athens Foundry & Machine Works maintain that the city of Athens has no power to change and deflect Clayton and Washington streets; that it had no power to grant to Baldwin and Mackall the right to lay tracks in the streets; that the city of Athens has no power to grant either to private persons or to a railroad company the right to use the streets; and that the construction of the track in Foundry street and the deflection of Washington street will cause the plaintiff to suffer special damages different in degree and kind from those suffered by the general public.
On the interlocutory hearing the court enjoined the terminal company from constructing and laying its tracks in Foundry street, opposite the foundry company's property, until the terminal company instituted condemnation proceedings and ascertained to what extent the foundry company had been injured, and pay or offer to pay whatever damages may be assessed, and refused to enjoin the deflection of Washington and Clayton streets, and the laying of the track in Foundry street not contiguous to plaintiff's property. Both the plaintiff and defendant excepted.
Lawton & Cuningham, H. S. West, and Erwin & Erwin, for plaintiff in error.
E. S. Price and Jno. J. Strickland, for defendant in error.
1-2. A commercial steam railroad cannot lay its tracks longitudinally along the streets of a city without the sanction of the General Assembly. This sanction must appear by express grant or necessary implication. Daly v. Ga So. R. Co., 80 Ga. 793, 7 S.E. 146, 12 Am.St.Rep. 286. Legislative sanction to devote a part of a street to railroad use is not given to a city by the grant of a general power to establish, change, and maintain its streets and alleys to a city. Nor is this sanction given by section 17 of the act approved August 24, 1872, amending the charter of Athens (Acts 1872, p. 127): "That in all cases of encroachments on the streets, lanes, or alleys of said city, the mayor and council shall have power to remove the same upon reasonable notice or permit, and sanction same for a fair and reasonable compensation in money, to be paid into the city treasury; said mayor and council having due regard to the interests of property holders who may be affected thereby." Daly v. Ga. So. R. Co., supra. As the city of Athens had no charter authority to consent to the laying of a track longitudinally along its streets, the grant of such power to Messrs. Baldwin and Mackall was an ultra vires act, and void. But after the filing of the petition the mayor and council re-enacted the same ordinance specifically granting to the Athens Terminal Company the same powers, slightly modified, which by ordinance the city had previously attempted to give to Messrs. Baldwin and Mackall. Objection was made to the court considering either ordinance, on the ground that the first ordinance was void, and that the ordinance conferring on the Athens Terminal Company the same powers previously given to Baldwin and Mackall in a void ordinance was passed by the council of the city of Athens after the inception of the litigation, and was neither curative of the void ordinance, nor available in this suit as an independent municipal act. The court properly considered both ordinances as evidence. The last ordinance by express terms incorporated the provisions of the former, and it thus became a part thereof. The plaintiff was seeking to enjoin the Athens Terminal Company from doing the things authorized by the municipal authorities of the city of...
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