Brunswick & W. R. Co. v. City of Waycross

• Decision Date: 17 April 1893
• Parties: BRUNSWICK & W. R. CO. v. MAYOR, ETC., OF CITY OF WAYCROSS et al.
• Court: Georgia Supreme Court

17 S.E. 674

91 Ga. 573

BRUNSWICK & W. R. CO. v. MAYOR, ETC., OF CITY OF WAYCROSS et al.

Supreme Court of Georgia

April 17, 1893

Syllabus by the Court.

Where the dedication of so much of a public street as crosses an existing track and the right of way of a railroad company has resulted by implication from the laying out of the street at that point by the municipal authorities and its use by the public, acquiesced in by the railroad company, the company is not thereby precluded from constructing and using for the passage of its locomotives and cars, when essential to the convenient transaction of its business, an additional track upon such street, within the limits of the right of way owned by it at the time of the dedication, if the track is so constructed and used as not to interfere more with the use of the street by the public than is ordinary and usual at street and railway intersections, where the whole breadth of the right of way is occupied with tracks for the passage of locomotives and cars.

Error from superior court, Ware county; Spencer R. Atkinson, Judge.

Suit for injunction by the mayor and council of the city of Waycross against the Brunswick & Western Railroad Company. Judgment for plaintiffs. Defendant brings error. Reversed.

S. W Hitch and Goodyear & Kay, for plaintiff in error.

J. L Sweat, L. A. Wilson, and Spencer R. Atkinson, for defendants in error.

SIMMONS J.

Injunction was granted at the instance of the municipal authorities of Waycross, restraining the Brunswick & Western Railroad Company from constructing a side track or "Y" to make a connection with another railroad, the proposed constructions crossing Plant avenue in that city. The case is the same that was before this court at the October term 1891, on exception to the granting of an interlocutory injunction, the decision being that there was no abuse of discretion in granting that injunction. 88 Ga. 68, 13 S.E. 835. When the case came on for final trial it was submitted to the judge without a jury upon the facts as set forth in his opinion rendered in granting the temporary injunction, and upon an amendment made by the railroad company setting up that its purpose and intention was to so construct the "Y" that it should be no obstruction to the passage of persons, vehicles, and property across Plant avenue, and that it was not its purpose to block up the avenue with cars, but solely to furnish a connection for the passage of cars and engines, running the same from its yard to the main line of the Savannah, Florida & Western Railway; and upon the admission that the public actually has a right of crossing the company's track at Plant avenue "by an acquiescence in such crossing and use, which amounts in law to a dedication of such use as a street across the railroad." The material facts, being set forth in the report in 88 Ga. 69, 13 S.E. 835, need not be repeated here. The injunction was made permanent, and the company excepted.

A vital element of dedication is the intent,--the animus dedicandi and where the dedication results from mere use and acquiescence it is not to be inferred that the donor parted with...