Bennett v. Atl. Coast Line R. Co

• Citation: 55 S.E. 177,126 Ga. 411
• Parties: BENNETT . v. ATLANTIC COAST LINE R. CO.
• Decision Date: 17 August 1906
• Court: Georgia Supreme Court

55 S.E. 177

126 Ga. 411

BENNETT .

v.ATLANTIC COAST LINE R. CO.

Supreme Court of Georgia.

Aug. 17, 1906.

1. Adverse Possession—Instructions.

Where, in an action to enjoin a trespass upon its right of way, one of the supports of the railroad company's title is prescription by 20 years' adverse possession, it is error for the court to instruct the jury that, if the company "opened out" and "cleared up" the right of way to the full width claimed 20 years prior to the institution of the action under consideration, it acquired title thereto, unless the defendant's grantor moved in the matter within the time allowed by law; the error being that the charge in effect instructs the jury that by simply opening out and clearing up the right of way the railroad company acquired title, whether it immediately or subsequently abandoned the whole or any part of the property or not.

2. Same—Color op Title—Extent—Railroad Right op Wat.

But where a railroad company, under the power given it in its charter, lays out a right of way 200 feet wide and maintains that width by keeping it clear of trees and undergrowth, its successor in title acquires color of title to the full width of 200 feet, although the instrument of conveyance merely describes it as the grantor's "right of way."

[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 463-4:05.]

(Syllabus by the Court.)

Error from Superior Court, Ware County; T. A. Parker, Judge.

Action by the Atlantic Coast Line Railroad Company against J. F. Bennett. Judgment for plaintiff, and defendant brings error.

Reversed.

Leon A. Wilson, for plaintiff in error.

Kay, Bennett & Conyers and J. C. McDonald, for defendant in error.

BECK, J. The Atlantic Coast Line Railroad Company brought an equitable petition seeking to enjoin Bennett from building a fence upon its alleged right of way within about 50 feet from its track, claiming that the width of the right of way, along that portion of the track where the defendant was building the fence, was 200 feet, extending 100 feet on each side of the center of the track. It was alleged that the plaintiff held this right of way under a prescriptive title, by reason of the continuous adverse possession of itself and its predecessors in title for more than 20 years, and also by possession under color of title for a period longer than the statute requires. Upon the trial evidence was introduced tending to show that the plaintiff, together with its predecessors, had for 30 years prior to the institution of this action kept the full width of 200 feet of the alleged right of way, upon a part of which the defendant was alleged to be trespassing, clear of trees and undergrowth. In the instruments conveying the road to the plaintiff and its grantors, the width of the right of way is not described, nor does it appear in the record by copy of charter; but evidence was introduced tending to show that 100 feet had been cleared and kept clear upon each side of the track by the Brunswick & Albany Railroad Company, the original owners of the road, which had the right under its charter to establish and maintain a right of way of that width. The defendant showed a perfect paper title in himself to the lot he was endeavoring to inclose, as well as to all of the land upon which the railroad was constructed for a distance covered by the proposed fence, but admitted that the plaintiff had a prescriptive title to a right of way 30 feet in width (15 feet on each side of the center of the track), and conceded that at the time the road was built and now 200 feet was the usual and necessary width for a right of way through that portion of the country. The jury found for the plaintiff, and to the overruling of the defendant's motion for a new trial he excepted. Besides the general grounds, the motion contained several special grounds, all of which that merit consideration will be taken...