City Council of Augusta v. Georgia R.R. & Banking Co.

• Decision Date: 29 February 1896
• Citation: 26 S.E. 499,98 Ga. 161
• Parties: CITY COUNCIL OF AUGUSTA v. GEORGIA RAILROAD & BANKING CO.
• Court: Georgia Supreme Court

26 S.E. 499

98 Ga. 161

CITY COUNCIL OF AUGUSTA v. GEORGIA RAILROAD & BANKING CO.

Supreme Court of Georgia

February 29, 1896

Syllabus by the Court.

1. In order to authorize a municipal corporation to take, for the purpose of opening or extending streets, property already devoted to public use, the power must be conferred in express terms or by necessary implication.

2. A general power conferred by legislative enactment upon a municipal corporation "to open new streets, change widen, or to extend streets already opened within the corporate limits," does not expressly confer upon the municipality the authority to take and use for this purpose land already in use by a railroad company for purposes embraced within the provisions of its charter.

3. In determining whether or not such authority arises by necessary implication in a given case under the above-recited enactment, the legislative intent is to be arrived at by applying the statute to the subject-matter. If both the uses may not reasonably stand together, or the latter use, when exercised, must necessarily supersede the former, the authority is not to be implied; otherwise it may be.

4. The trial judge having found upon the facts submitted at the hearing for an interlocutory injunction that the two uses were utterly inconsistent, there was no abuse of discretion in granting a temporary injunction against the municipal authorities, and thus leaving the questions of law and fact arising in this case to be adjudicated at the final hearing.

Error from superior court, Richmond county; E. H. Callaway, Judge.

Action by the Georgia Railroad & Banking Company against the city council of Augusta for injunction. A preliminary injunction was granted, and defendant brings error. Affirmed.

M. P Carroll and W. T. Davidson, for plaintiff in error.

Jos. B. & Bryan Cumming, for defendant in error.

ATKINSON J.

1, 2. We do not think the court in the present case erred in granting the injunction prayed for. The proposition that the devotion of property under statutory authority to a public use protects it against a subsequent appropriation to another and inconsistent use, unless such subsequent appropriation be by virtue of express statutory authority, or rest upon a power which is necessarily implied from the nature of the uses and purposes declared in the subsequent grant, seems to be well established. That the right of eminent domain extends to property which has already been appropriated to a prior public use is not doubted, nor is the proposition open to question that the legislature by express enactment may authorize the appropriation of the property already devoted to a public use to another and entirely inconsistent public use, whenever the necessities of the public so require; or if the legislature, while not expressly authorizing the appropriation to a public use of property so previously applied, confers a second grant, in the exercise of which it is absolutely indispensable that property held under a prior appropriation shall be devoted to the public use so thereafter declared, the power to so apply it may be implied but it is equally well settled that a general power conferred upon municipal corporations to open new streets, to change widen, or to extend streets already opened within the corporate limits, does not expressly or by necessary implication confer upon such municipality the authority to take and use land already appropriated to a public use. This proposition may be well illustrated by reference to such a hypothetical case as one...