Atl. & B. Ry. Co v. Mayor

• Decision Date: 30 January 1905
• Citation: 122 Ga. 1,49 S.E. 738
• Court: Georgia Supreme Court
• Parties: ATLANTIC & B. RY. CO. v. MAYOR, ETC., OF CITY OP MONTEZUMA.

49 S.E. 738

122 Ga. 1

ATLANTIC & B. RY. CO.

v.MAYOR, ETC., OF CITY OP MONTEZUMA.

Supreme Court of Georgia.

Jan. 30, 1905.

RAILROADS—USE OP STREET—ORDINANCE— VALIDITY.

1. Where, by virtue of Civ. Code 1895, § 2167, par. 5, and a contract with the city, the plaintiff had a right to construct and maintain a railroad track through Cherry street, in Montezuma, this would not authorize the company to use the street for drilling, switching or transferring cars.

2. The chancellor did not err in refusing to enjoin the city from enforcing an ordinance limiting the speed of trains and requiring a flagman to precede the trains in the street, and prohibiting the company from stopping, drilling, or in any manner shifting or transferring cars between indicated points on the street.

(Syllabus by the Court.)

Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.

Action by the Atlantic & Birmingham Railway Company against the mayor and council of Montezuma. Judgment for defendant, and plaintiff brings error. Affirmed.

On April 7, 1902, in consideration of the mutual benefits arising to each party, it was agreed that the mayor and council of Montezuma would secure for the Atlantic & Birmingham Railroad Company a right of way from the line of Macon county to Flint river, "including right of way to and through Cherry St. in Montezuma, Ga., and would hold the railroad company harmless from any damages arising from the operation of said road through Cherry St. which might be claimed by the owners of the property adjacent thereto by reason of the use of this street for this purpose having been allowed by the city council." The city also provided for the right of way for the location of a "Y" on lands outside of the city, the "Y" to be used for turning locomotives and trains, and donated a right of way 1, 200 feet in length running west of Dooly street towards the Flint river. The railroad company, on its part, agreed to begin and prosecute to a finish the building of its road from Cordele to and through Montezuma. By its petition the railroad company alleged that in pursuance of this contract it had constructed its line of railway through Cherry street to the aforesaid tract of land, upon which it erected its depot, and has continued to maintain and operate its road to said point as its terminus; that especially in the handling of freight cars at said point where connection is made with the Central of Georgia Railway, it is necessary to switch and drill its trains upon Cherry street, and in shifting and transferring cars it is compelled to use the part of Cherry street between the east side of Spalding street and the old Rosser storehouse in Montezuma; that, notwithstanding it has endeavored only to use Cherry street for these purposes in a reasonable manner, and so to limit the use as not to interfere with the interests of the defendant or of the public, and although no damage has resulted to the defendant or the public, the city council, on March 25, 1902, passed an ordinance prohibiting engines going through Cherry street at a greater rate than three miles an hour, and also requiring a flagman to go ahead of the train, "and no train or engine will be permitted to stop, drill, or in any manner shift...