Atlanta v. Speer

• Decision Date: 31 March 1861
• Citation: 32 Ga. 550
• Parties: Atlanta and West Point Railroad Company, plaintiff in error. vs. William A. Speer, defendant in error.
• Court: Georgia Supreme Court

32 Ga. 550

Atlanta and West Point Railroad Company, plaintiff in error. vs. William A. Speer, defendant in error.

Supreme Court of the State of Georgia

MARCH TERM, 1861.

Bill in equity, in Troup Superior Court, and decision on demurrer, made by Judge D. F. Hammond, at Chambers, on the 6th of March, 1861.

On the 10th of December, 1850, William A. Speer executed a deed to the Atlanta and West Point Railroad Company, (then called the Atlanta and LaGrange Railroad Company,) of the material parts of which the following is a copy, to-wit:

" The said William A. Speer, for and in consideration of running their contemplated railroad on and along his land, as well as in consideration of the sum of five dollars to him in hand paid, " before the execution of the deed, " hath given, granted, bargained and sold, and doth by these presents give, grant, bargain and sell unto the said Railroad Company, and their successors and assigns, the right-of-way over which to pass at all times, by themselves, directors, officers, agents, servants and hirelings, in any manner they may think proper, and particularly for the purpose of running, erecting, and establishing thereon a railroad, with double track and turnout, or with single track and turn-out, as may at all times be at the discretion of said Company pursuant to their charter of incorporation, and to this end the limits of said right-of-way shall extend in width one hundred feet on each side from the centre of the roadway, when completed, and to extend in length through the whole tract of land owned and claimed by the said William A. Speer, being lots of land Nos. 34 and 35, in the 11th district of said county of Troup, and running in such direction through said tract of land, as said Company, by their agents, managers or workmen shall think best suited for the purpose of locating and establishing their said works; and connected with said right-of-way, the said Company shall have the right to cut down and remove all such timbers, or other growth, on each side of said road, as would by falling or shading the same injure the rails, or other parts of said road. In addition to the consideration above named, the said Company agree to erect and maintain a platform at some convenient point, on said right-of-way, for the shipment and receipt of such produce and merchandise as the said Speer, his heirs or assigns, may [desire] to ship or receive, said shipment to be taken on three days\' notice being given to the nearest agent of the Company. The said Speer, his heirs and assigns, reserve the right to cultivate the land not wanted in the construction and repairs of the road, and also the right to flood the grounds near the arch culvert in the cultivation of rice."

On the 19th of April, 1860, the said William A. Speer exhibited bis bill in equity, in Troup Superior Court, against the said Railroad Company, setting out the said deed and alleging that although a platform was erected on the right of way granted in the deed, yet in every other particular the Company had disregarded and violated the obligations and duties imposed upon it in and by the terms of the contract. The complainant specifies a number of instances in which the Company refused to ship produce and merchandise to or from the platform when requested to do so in terms of thecontract embodied in the deed, and alleges that he hath sustained heavy damages by such failure and refusal, whilst it would have been worth to him three hundred dollars per annum, if the Company had faithfully complied with the contract.

Complainant also alleges, that by an accidental omission the word "desire" was left out of said deed, when...