Bridwell v. Gate City Terminal Co.
| Decision Date | 01 March 1907 |
| Citation | 56 S.E. 624,127 Ga. 520 |
| Parties | BRIDWELL v. GATE CITY TERMINAL CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
That a commercial steam railroad for the common carriage of freight and passengers will be only about three miles in length, and will, for a considerable part of its course, lie within the corporate limits of a city, and that it will connect with other steam railways at the outer terminus, does not prevent it from falling within the purview of the general laws for incorporating railroad companies.
If it were a question of doubt as to what was the real character of a corporation, its name might be considered to throw light on that subject. But that a company is called a terminal company will not change its character, if it is a railroad company within the meaning of the law.
The road now proposed to be built, being only about three miles in length, does not fall within the restriction contained in section 2176 of the Civil Code of 1895.
A charter obtained from the state for the purpose of constructing and operating a commercial railway as a common carrier is granted for a public purpose. It cannot be used for a purely private purpose; nor can the company so chartered exercise the right of eminent domain for a mere private purpose.
Where a railroad company was incorporated under the general law with power expressed in the charter to construct a railroad from a point some distance outside of a populous city easterly to a point at or near the center of the city, if the power to locate the terminus and line and exercise the right of eminent domain could be conferred by the directors on the president, yet under a general authority to manage the business of the company subject to the approval and direction of the board of directors, or its chairman or committee conferred by the by-laws on the president, he could not lawfully fix such route and terminus, and proceed with condemnation proceedings, before such approval.
Where a notice as the commencement of condemnation proceedings was given by the president's direction without lawful authority, and the time had expired under its terms for the appointment of an assessor by the landowner, the directors could not, by ratifying the act of the president, cause such ratification to relate back and to give such notice the same effect which it would have had if it had been legal when given.
Where the charter of a railroad company fixed one of its termini at a station some distance outside of the corporate limits of a city, and described the road to be located as running easterly to a point at or near the center of the city, but in fact a line run due east would not enter the city at all, the corporation had a discretion to locate the other terminus at a point within the city at or near its center; and, where a line was located from the initial point to the terminus so fixed, running in a general southeasterly direction, this was not a violation of the charter; and condemnation proceedings instituted on the line so located were not void for that reason.
If a real estate agent, representing a railroad company, informed a lot owner that the company desired her lot for the purpose of the right of way and freight yard, and made her an offer which he testified was a fair price for the property desired and which she refused to accept, this would be a sufficient negotiation within the meaning of the statute before the commencement by the company of condemnation proceedings.
If the plaintiff be the owner of a lot abutting on a public street it will not require the proceedings to condemn her lot for railroad purposes to be enjoined on the ground that the company has not condemned such interest as she may have in the street, or acquired the right to cross it.
The issues of fact were passed on by the presiding judge so far as they affected the application for an injunction; and there was sufficient evidence to authorize his finding in respect to them. The judgment refusing the injunction is reversed solely on the ground that the plaintiff is entitled to be served with a notice of the intention to condemn her property, lawful when given, and thereafter to have the time provided by the statute for appointing an assessor.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by Harriett Bridwell against the Gate City Terminal Company. From a judgment in favor of defendant, plaintiff brings error. Reversed.
Mayson & Hill and Smith, Berner, Smith & Hastings, for plaintiff in error.
Rosser & Brandon, for defendant in error.
The substantial questions in this case may be grouped under two general heads: (1) Is the defendant a railroad company within the meaning of the general law providing for the incorporation of such companies, and has it the power as a railroad company to condemn the plaintiff's land? (2) If so, is it proceeding to use such power for an unlawful purpose, or to exercise it in an unlawful manner?
1. Let us first consider whether the defendant is a railroad company within the meaning of the general law touching the incorporation of such companies. The subject of the incorporation and power of railroad companies under the general law is dealt with in sections 2159-2179 of the Civil Code of 1895. Section 2160 provides that any number of persons, not less than 10, who desire to be incorporated for that purpose, may form a company; but before receiving a certificate of incorporation they shall file a petition in writing, addressed to the Secretary of State, in which shall be stated certain things in regard to the probable length "general direction," capital stock, etc. Before the Secretary of State issues a certificate of incorporation, he must satisfy himself that all the requirements of law prior to the filing of the petition have been substantially complied with; "and any certificate or duplicate thereof issued under this article by said Secretary of State shall be conclusive evidence of the existence of such corporation in all the courts and places in this state, and of a compliance with all the requirements of this article." Civ. Code 1895, 2162. There is no contention but that the requirements above stated were duly complied with, and that the Secretary of State issued a certificate of incorporation. It cannot be doubted, therefore, that the company is duly incorporated, if the Secretary of State had power to charter it. Under section 5780 of the Code all charters of railroad companies must be granted by the Secretary of State.
It is argued that the railroad will only be some three miles in length, and that this was not such a railroad as was contemplated by the general incorporation laws. Section 2166 of the Civil Code of 1895 provides that the corporate powers and privileges shall cease at the expiration of two years from the date of the certificate of incorporation, "if at the expiration of said two years said company has not constructed, equipped, and are operating the same for at least fifteen miles of said road, or the entire road if the same be of less length than fifteen miles." This contemplates that there may be railroads more than 15 miles in length, or less than that length. This is again recognized in the act of August 17, 1903 (Acts 1903, p. 34), which authorizes the Secretary of State, for cause shown, to grant an extension of the time for such construction. In this act it is implied that a railroad company may be incorporated to build less than 10 miles as the entire road. This is clear from the use of the expression, "and such relief shall not be granted to any corporation which has not graded at least ten miles of its roadway at the time of the arising of such cause for forfeiture, or the entire roadway if the same be not so long as ten miles." No minimum limit as to length is fixed by the statute. In defining a common carrier as "one who pursues the business constantly or continuously, for any period of time, or any distance of transportation," the Code does not indicate any length of road which the company must have in order to be a common carrier. Civ. Code 1895, § 2264. It is possible that a charter might not be granted to operate a railroad a few feet in length, or for so short a distance that it would be practically impossible of operation as a common carrier, or, if a charter should be granted, it is possible that the courts might hold that such a venture was not a genuine railroad within the meaning of the law, so as to condemn property. But it cannot be said as matter of law that merely because a commercial steam railroad will only be about three miles in length it will be no railroad at all. On this subject, see 1 Lewis, Eminent Domain (2d Ed.) § 170, p. 435; National Docks & N. J. J. C. Ry. Co. v. State (United N. J. R. R. Co.), 21 A. 570, 53 N. J. Law, 217, 26 Am.St.Rep. 421; Niemeyer v. Little Rock Ry., 43 Ark. 111; Collier v. Union Ry. Co., 83 S.W. 155, 113 Tenn. 96; State v. Martin, 33 P. 9, 51 Kan. 462; Long Branch Com'rs v. West End R. R. Co., 29 N. J. 566; National Docks R. R. Co. v. Central R. R. Co., 32 N.J.Eq. 755, 766. While the question now under consideration was not then directly involved, yet a company incorporated under the general law to construct and operate a short belt line railroad near the eastern boundary of the city of Atlanta was dealt with in Georgia R. R. Co. v. Maddox, 116 Ga. 67, 68 (1), 42 S.E. 315, and treated as having the power to acquire by condemnation land necessary for its construction.
It is suggested that one terminus of the road which is sought to be chartered is at a point not far from the corporate limits of the city of Atlanta, and that most of the road will lie within the city. But, if it is a railroad within the meaning of the law, the...
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