Atlanta & W.P.R. Co. v. City of Atlanta

• Court: Georgia Supreme Court
• Writing for the Court: GILBERT, J. HINES, J.
• Citation: Atlanta & W.P.R. Co. v. City of Atlanta, 119 S.E. 712, 156 Ga. 251 (Ga. 1923)
• Decision Date: 07 September 1923
• Docket Number: 3423.
• Parties: ATLANTA & W. P. R. CO. v. CITY OF ATLANTA.

119 S.E. 712

156 Ga. 251

ATLANTA & W. P. R. CO. v. CITY OF ATLANTA.

No. 3423.

Supreme Court of Georgia

September 7, 1923

Syllabus by the Court.

"Whenever municipal authorities have lawfully subjected the property of a railroad company to the public use for street purposes then, and not until then, can the railroad company be required to maintain a street crossing over its tracks." Ga. R. Co. v. Union Point, 119 Ga. 809, 816, 47 S.E 183, 186, and authorities cited.

The city may acquire the right to extend its streets across the right of way by dedication. The city of Atlanta did acquire an easement across the railroad right of way by virtue of the contract between Barth and the Atlanta Belt Line Company.

The contract mentioned in the next preceding headnote, having become a part of the judgment rendered in the superior court was binding on the Atlanta & West Point Railroad Company, the successor in title to the Atlanta Belt Line Company. The judgment being constructive notice, the former took its title with such notice, and subject to all rights of the city of Atlanta thereunder. While the dedication continues, the dedicator, and his grantee as well, is estopped from asserting any right in the soil inconsistent with the public easement.

"Where an easement has been acquired by grant, a mere nonuser without further evidence of an intent to abandon it will not constitute abandonment." Mayor, etc., of Savannah v. Barnes, 148 Ga. 317, 96 S.E. 625, 9 A.L.R. 419.

Mandamus will not lie to enforce private rights under the contract, but it will lie at the instance of a municipality to enforce the discharge of a public duty growing out of such contract.

The city of Atlanta, having acquired an easement by dedication to a crossing over the railroad right of way, could legally proceed to require the railroad company to build a suitable bridge.

Under the allegations of the petition, mandamus is the proper remedy under the Civil Code of 1910, § 2673, to require a railroad to construct a bridge across a street in a case of the character made. People v. Union Pac. R. Co., 20 Colo. 186, 37 P. 610; Elliott on Roads and Streets, § 8; 26 Cyc. 367.

Section 385 of the City Code of Atlanta (Ga. Laws 1889, p. 819, § 16) is authority, and the only authority, granted to the city for it to require railroad companies to erect suitable bridges across their tracks and roadbeds where the same cross public streets of the city. This power is in terms restricted to cases where the mayor and general council shall declare the same to be "necessary for the protection of human life." In the present instance the mayor and council have not declared that the erection of the bridge is "necessary for the protection of human life." The resolutions passed do not comply, literally or in substance, with the statutory requirement. The court erred in refusing to sustain the general demurrer to the petition for mandamus.

Additional Syllabus by Editorial Staff.

No particular form of words is required for making a dedication; it may be orally or in writing, or it may be inferred from acts; and its acceptance may be shown by any acts of the municipality recognizing it.

Where a dedication is made by deed, the grantor, the grantee, and the public are parties to the transaction, and the title to the land dedicated vests in the public for the uses named and on the conditions stated in the deed.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Petition by the City of Atlanta against the Atlanta & West Point Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

The city of Atlanta filed a petition praying that Atlanta & West Point Railroad Company be compelled by the writ of mandamus to build across its railroad tracks and right of way at Berne street, within the corporate limits of said city, a suitable bridge for the use of the general public in traveling in Berne street. The allegations of the petition are, in substance, as follows: In 1900 the parties in suit No. 7896, then pending in Fulton superior court, being a proceeding to condemn land for railroad purposes, and sounding Atlanta Belt Line v. C. F. Barth, entered into an agreement settling the litigation, which included the following provision:

"Should the city of Atlanta or Fulton county hereafter extend Berne avenue in such manner as to cross the line of the plaintiff's right of way at or near its station No. 221, extending thence through the property of the defendant Barth, the said plaintiff will allow the opening of said avenue across its right of way, and will construct and maintain a suitable bridge for the passage of persons and vehicles over its tracks at or near said station, the height of said bridge to be in the clear not less than twenty-two (22) feet above the top of the rails of the Belt Line Company."

In 1914 the Atlanta & West Point Railroad Company acquired by deed of conveyance the entire properties of the Atlanta Belt Line Company, including its line of railroad, lands, leasehold estate, ways, rights of way, easements, and franchises, and the specified right of way acquired by the Belt Line Company in said condemnation proceedings and the agreement made in connection therewith. The city has full power and authority, under its charter, to open up, lay out, grade, pave, and improve streets within its corporate limits; it represents the public in procuring the enforcement of duties owing by corporations to the public. Berne street, formerly known as Berne avenue, has been in existence for more than 20 years. By authority of its mayor and council petitioner had recently laid out, opened up, and partially completed the work of grading Berne street, which street, at the time of filing the petition was being used by the public for travel, except that portion extending across the right of way and railroad track of the defendant, which is impassable because of the fact that in constructing the line of railroad at said point defendant's predecessor excavated for a depth of approximately twenty-two feet below the grade of Berne street, leaving high embankments on either side at the points of approach from Berne street; and it is impossible for persons and vehicles traveling on said street to pass over the railroad tracks and right of way of defendant unless a suitable bridge be constructed and maintained over the tracks and right of way. The place where defendant is now called on to build said bridge is on the property over which defendant's predecessor in title acquired a right of way through the condemnation proceedings mentioned above. It is the duty of defendant to construct and maintain a suitable bridge for this purpose, because of the stipulation quoted above from the agreement made in settlement of the litigation between Atlanta Belt Line Company and Barth, and also because the Civil Code 1910, § 2673, provides that--

"All railroad companies shall keep in good order, at their expense, the public or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws."

The safety, convenience, and welfare of the general public require the improvement of Berne street and the construction of the bridge; that the mayor and council of the city of Atlanta have passed resolutions calling upon the Atlanta & West Point Railroad Company to construct the bridge, one of which recited that--

"The safety, convenience, and welfare of the general public require, in the extension of Berne street as aforesaid, a suitable bridge to be constructed and maintained for the passage of persons and vehicles over the right of way and tracks of said Atlanta & West Point Railroad Company at the point as designated."

The railroad company has declined to construct the bridge, and the plaintiff's only remedy is by application for mandamus.

The respondent demurred to the petition, upon the grounds: (1) The allegations do not show the applicant to be entitled to mandamus; (2) that if respondent is liable under the obligations of the agreement between Atlanta Belt Line Company and Barth such obligations cannot be enforced by the city of Atlanta, because it was no party to the agreement; (3) the respondent, not having been a party to said agreement, and never having assumed any of the obligations imposed upon the Atlanta Belt Line Company, is not bound by said agreement; (4) the petition does not allege that the city has acquired the land upon which to found the bridge and lay out Berne street across the property of respondent; the respondent is under no legal duty to furnish land for this purpose, and until the city has acquired the necessary land it has no legal right to mandamus to compel respondent to construct the bridge. Error was assigned upon the judgment of the court overruling this demurrer.

Russell, C.J., and Hines, J., dissenting from paragraph 8 and from the judgment.

Beck, P.J., and Atkinson, J., dissenting in part.

Dorsey, Brewster, Howell & Heyman, of Atlanta, for plaintiff in error.

J. L. Mayson and J. M. Wood, both of Atlanta, for defendant in error.

GILBERT J.

1. The first headnote does not require elaboration.

2. A municipality may acquire an easement by dedication. Southern Ry. Co. v. Combs, 124 Ga. 1004, 1010, 53 S.E. 508. Dedication is a question of intention, and intention by the Atlanta Belt Line Company to dedicate, on the day it made a settlement with Barth for a right of way and for an extention of Berne avenue, is perfectly clear. The only thing remaining to be done to make the dedication effective was for the city of Atlanta to accept the dedication on the terms named in the agreement. The city of...