Charleston & W.C. Ry. Co. v. Fleming

• Citation: 45 S.E. 664,118 Ga. 699
• Parties: CHARLESTON & W. C. RY. CO. v. FLEMING.
• Decision Date: 08 October 1903
• Court: Supreme Court of Georgia

45 S.E. 664

118 Ga. 699

CHARLESTON & W. C. RY. CO. v. FLEMING.

Supreme Court of Georgia

October 8, 1903

Syllabus by the Court.

1. Where one lays out a wagon road entirely on his own land, he has the same title to the road as to any other part of the land; and, if a railroad company condemns a right of way through the land and across the wagon road, it acquires the same title to the wagon road as to the remainder of the tract condemned.

2. One of several tenants in common cannot, without the consent of his co-tenants, convey an easement in the land, which is the common property of all.

3. To acquire a private way by prescription, it is essential that the prescriber keep the way in repair for the period of prescription.

4. A private way of necessity will not be granted unless it is indispensable to the enjoyment of his property by the party claiming it.

Error from Superior Court, Richmond County; W. T. Gary, Judge.

Action by J. L. Fleming against the Charleston & Western Carolina Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

Wm. K Miller, for plaintiff in error.

Wm. H Fleming, for defendant in error.

CANDLER J.

Fleming brought suit against the Charleston & Western Carolina Railway Company to enjoin it from closing or obstructing a wagon road leading from his land across the right of way of the defendant. It is alleged in the petition that the road in question was in existence prior to the year 1858, when the property was owned by Charles De Laigle, and that it has ever since been used by the owners of the property. Fleming's property is a portion of the tract formerly owned by De Laigle. The petition also showed that while Holt, one of the plaintiff's predecessors in title, was in possession of the premises, "the Port Royal Railway Company, under which the defendant now claims, instituted proceedings to condemn a right of way 100 feet wide through said lot, *** and crossing said wagon road"; that damages were awarded Holt by the jury in the final trial of the condemnation proceedings, but it is claimed that "in none of said condemnation proceedings was any mention made of any intention to close up said wagon road, or in any way interfere with its free and uninterrupted use." It is alleged that the wagon road, through its entire length across the railroad right of way, does not exceed 15 feet in width that the defendant, or those under whom it claims, has had full knowledge of the long user of the road by the plaintiff and his predecessors; and that it now threatens and intends to obstruct the road and entirely close it up, which would cause the plaintiff irreparable damages. By amendment it was alleged that "plaintiff, and those under whom he claims, have always kept said wagon road in repair, except that portion lying within the right of way of the railroad." Other amendments to the petition were also allowed, over objections of counsel for the defendant, in one of which it was alleged that the wagon road in question is the only means of egress and ingress between the plaintiff's property and any public street or highway. The other amendment set up that in a deed in the plaintiff's chain of title, and under which he claimed, "there was an express stipulation that the grantees should have the right to cross the said right of way of the railroad by the farm road as then laid out and used." To the petition as amended the railroad company demurred, and its demurrers were overruled. It also filed an answer, and on the trial evidence was introduced by both the plaintiff and the defendant. The court passed an order granting the injunction prayed for, and the defendant excepted.

1. The petition and the amendments thereto are silent as to the exact nature of the road which it is sought to enjoin the defendant from obstructing, but, from the record and the briefs of counsel, it is plainly inferable that it is a private way lying entirely upon the plaintiff's land, except as to that portion which intersects the right of way of the railway company. It is not disputed that the wagon road was in existence long before the railroad was built, that it was then wholly upon the land of the plaintiff's predecessors in title, and that the railroad was constructed across the wagon road. It is axiomatic that one cannot have an easement upon his own property, for the lesser estate, represented by the easement, will be merged into the fee, upon which it is subservient. 10 Am. & Eng. Enc. L. (2d Ed.) 433. It follows that when the railroad was built, and the land, then belonging to Holt, the plaintiff's predecessor in title, was condemned, the rights of the landowner in the wagon road were no greater than those in any other part of the land condemned, and the condemnation proceedings gave to the railroad company the same title to the portion of the wagon road intersected by its right of way that it acquired to the remaining portion of the tract condemned.

2. Necessarily, then, any right in the plaintiff to maintain his wagon road unobstructed across the right of way of the railroad company must have arisen since the condemnation proceedings to which reference has been made. It will have been observed that by one of the amendments to the petition the plaintiff alleged that he acquired the right to cross the railroad right of way at this point by express grant. It seems that by the will of Charles De Laigle, executed in 1865, the property now owned by the plaintiff, and through which the wagon road in question runs, was devised to the testator's daughter, Emma De Laigle, for life, with remainder to such child or children of Emma De Laigle as might survive her. While the life tenant was still unmarried the property was, by order of the superior court of Richmond county, sold for reinvestment, and Fleming bought from one holding under the purchaser at the sale had in pursuance of this order. Emma De Laigle subsequently married, and at her death left a daughter, Bryan Harris Hughes. Within seven years from the death of her mother, Mrs. Hughes, as the remainderman under the will of Charles De Laigle, brought an action of ejectment against Fleming, and recovered the property; the judgment of the lower court being affirmed by this court. Fleming v. Hughes, 99 Ga. 444, 27 S.E. 791. In 1897 Mrs....