Atlanta & W. P. R. Co v. Atlanta
| Citation | 54 S.E. 736,125 Ga. 529 |
| Court | Supreme Court of Georgia |
| Decision Date | 16 May 1906 |
| Parties | ATLANTA & W. P. R. CO. v. ATLANTA, B. & A. R. CO. |
Where, in an application for injunction against a railroad company to prevent the laying of its tracks and operation of its trains along a street of a city by one alleging himself to be the owner of the fee in the street subject to the easement, and also the owner of the abutting property, and alleging that the proposed use of the street against his will, and without the condemnation proceedings authorized by law, was an unlawful taking and damaging of his property; and it not appearing from the evidence offered by the plaintiff that he suffered any special damage other than the mere fact of taking his property, it was not erroneous for the court, on the hearing of the case for interlocutory injunction, to exclude as irrelevant and immaterial an affidavit offered by the defendant to the effect that the construction of the road along the street would increase the values of the abutting property.
As to the one-acre tract of land involved in the controversy, the southeastern boundary was rendered ascertainable by the location of the right of way of the railroad through a definitely described tract of land. The north and south lines of the larger tract, from which the one acre was intended to be carved, under reasonable construction were to be other boundaries of the one-acre tract. The remaining boundary was ascertainable by drawing a straight line, connecting the said north and south boundary lines, and running parallel with another fixed north and south line, and to be located sufficiently west from the said southeast boundary to make the inclosure contain exactly one acre. The deed with such description was sufficiently definite in matters of description to operate either as color of, or convenience of, title to the one-acre tract.
[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 65-71.]
3, 4. Evidence—Maps—Authentication.
On the hearing of the application for interlocutory injunction, it was not erroneous to admit in evidence the affidavit of the surveyor and an attached plat of land; it being deposed by the witness that he had made the survey and the plat and that it truly represented the land in dispute.
[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 1656.]
5. Same—Parol Evidence Affecting Writings.
There was no error in excluding from evidence that part of the affidavit of the witness concerning which complaint is made in the fifth assignment of error in the cross-bill of exceptions.
6, 7. Adverse Possession—Evidence.
The court's decision on the interlocutory hearing is not final on the question of title, and it is not up for review as such. Its ruling upon that question will be regarded only as if it had found that there was sufficient evidence of title to authorize the grant of an injunction in the event there were other reasons which justified interference by the court. From this standpoint, the evidence upon the question of title was sufficient to justify the exercise of the court's discretion, and the exception to the ruling of the court as complained of in the sixth and seventh grounds of the cross-bill of exceptions are not sufficient to reverse the court below upon the ruling against which complaint is made.
8. Eminent Domain—Additional Servitude
—Railroad on Street.
The laying of a track upon a street in a municipality for the purpose of operating a commercial steam railroad is of itself the imposition of an additional servitude, entitling the owner of the servient fee to compensation being first paid before construction.
[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 304-311.]
(Syllabus by the Court.)
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Cross-actions between the Atlanta & West Point Railroad Company and the Atlanta, Birmingham & Atlantic Railroad Company. From the judgment, both parties bring error. Judgment on main bill of exceptions reversed; on cross-bill affirmed.
See 52 S. E. 320.
The plaintiff, being a railroad company, filed its suit against the defendant, being another railroad company, by original petition and amendment thereto, alleging in substance, among other things, its ownership of a certain tract of land, basing its title upon certain deeds described in the petition and possession thereunder for a sufficient length of time for prescription to mature; that without plaintiff's consent, and without first having made an effort to condemn said property, and without having offered or tendered plaintiff payment for the same, the defendant proposes, and now threatens, to lay immediately upon and across said land a railroad track, and in furtherance of said purpose has prepared, and is ready and will (unless enjoined) at once construct a railroad track over and upon said land by the use of rails, ties, angle bars, spikes, etc., to the injury and damage of the plaintiff; that the injury and damage will be irreparable, because "it will be destruction of the property itself, and in grading the same it will place said property in a condition so as to render it unfit for the uses to which petitioner has put said property in connection with its business, and in such grading the soil of the property of your petitioner would be carried away and removed, " and further because said conduct of defendant "deprives petitioner of its property without due process of law, and is further violative of article 14 of the Constitution of the United States in that it deprives petitioner of its property without due process of law, and is further violative of article 1, paragraph 3, of the Constitution of the state of Georgia in that it deprives petitioner of its property without due process of law"; that there is no adequate relief at law and an injunction is necessary. The prayer is for injunction against entering upon or doing any grading or laying any ties or rails or building any track or tracks on said land or doing any act of interference whatever to said land, and for general relief. Upon an appropriate prayer, a restraining order was granted and rule nisi issued calling upon the defendant to show cause at a future time and designated place why injunction should not issue as prayed. The defendant filed a general demurrer, and, subject to the demurrer, filed its answer in the nature of a cross-bill and amendment thereto, whereby it denied in substance plaintiff's ownership of the land, and any intention to do any of the things complained of, on plain tiff's land, but admitting that it "is proposing to lay its tracks in Morgan street for three and a half blocks north of Depot street running to and across Depot street, on its own land, " and alleging that "Morgan street is not in the possession of the plaintiff, but is in the possession of the city of La Grange, and is being used by, and has been used by it for a long time as a street, and the same has been dedicated for a great number of years to the city of La Grange for street uses and purposes, " and, further, that "this defendant is laying its tracks or proposes to lay its tracks in Morgan street and not on any land of the plaintiff, " and, further, that for reasons stated, defendant has not sought to condemn Morgan street as plaintiff's property, nor offered or tendered to the plaintiff compensation for the same; that defendant has authority from the city of La Grange, and proposes to lay The street will be left "open for the purpose of travel by the general public, " and will not be "appropriated" by defendant "to its own particular use, " nor will its use "in any manner obstruct travel thereon, or render said street less fit to the use of the public as a street." The line proposed to be constructed will be a "simple track along that portion of Morgan street before referred to" and will be laid Defendant also pleaded that for certain reasons not necessary to mention, the plaintiff was estopped from denying that "the ground to be occupied by defendant with its tracks was and is a public street, " and alleging specially that it has charter authority from the state to construct and operate a railroad between specified points, which would authorize the building through the city of La Grange. All things alleged by plaintiff which were not ad-mitted, were denied. The prayer was "for a decree as against the plaintiff establishing its right to lay its tracks in said Morgan street and to operate its railroad thereon, and that the restraining order previously granted be dissolved, and it be permitted to proceed with its work."
Upon the interlocutory hearing the plaintiff tendered in evidence a warranty deed, dated ...
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