Cleveland v. City Council of Augusta
| Decision Date | 10 August 1897 |
| Citation | 29 S.E. 584,102 Ga. 233 |
| Parties | CLEVELAND v. CITY COUNCIL OF AUGUSTA. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A railroad corporation, which, under its charter, constructs its tracks across an existing public highway or street of a city, does so on the implied condition that it will yield to the reasonable burdens imposed by the growth and development of the country or the city, and, where the public welfare demands a change of the grade of the highway or street, the railroad company must, at its own expense, make such alteration in the grade of its crossing as will conform to the new grade.
Error from superior court, Richmond county; E. H. Callaway, Judge.
Action by John B. Cleveland, receiver, against the city council of Augusta, to determine the liability for expenses incurred by raising the grade of the railroad track. Defendant had judgment, and plaintiff brings error. Affirmed.
S. J Simpson and Ganahl & Ganahl, for plaintiff in error.
M. P Carroll and W. T. Davidson, for defendant in error.
The railroad company, in the construction of its line of railroad, in the year 1880, laid its track across a public highway outside of, but near, the then corporate limits of the city of Augusta. In 1882 the corporate limits of Augusta were, by legislative authority, so extended as to include the area over which said track crossed the highway. In 1893 the city undertook a public improvement for the purpose of protecting the city from overflows of the Savannah river, and determined during the course of such improvement to raise the level of the highway or street at the point where it was crossed or intersected by the railroad track, inasmuch as said street was alleged to be low, and below a proper grade causing in times of an even ordinarily high river the street at that point to become flooded, and to be impassable, cutting off the western portion of the city over that street entirely, said street being the main thoroughfare to reach the manufacturing industries, and what is known as "Harrisburg" and "West End." In pursuance of its plans, the city constructed an iron bridge on the street across a certain canal at a point about 100 yards east of the point where the railroad intersected the street, and then proceeded to raise the grade of the street west of said bridge, and, after it had thus raised the grade on either side of the railroad crossing, notified the receiver of the railroad company, hereafter referred to as the "Railroad Company," to raise the grade of the railroad track. The Railroad Company claimed that it did not, at the time, have the necessary money to raise the grade of said road, and also denied liability to pay the expense thereof. An agreement was then entered into, whereby the Railroad Company was to have the work done, the city pay the expenses, and the question of liability to be submitted to and determined by the courts. It appears that the raising of the grade of the railroad track where it intersected the highway involved an elevation of the track several feet for several hundred yards on either side of the approaches to said street.
The authority of the city to make the improvement of the street is conceded. The sole question presented is, is the Railroad Company entitled to damages by way of compensation for so elevating its track and right of way as to conform to the new grade? At common law the rule is that, where a highway is made across another one already in use, the crossing must not only be made with as little injury as possible to the old way, but whatever structures may be necessary to the convenience and safety of the crossing must be erected and maintained by the person or corporation constructing and using the new way. Chesapeake, O. & S.W. R. Co. v. Dyer Co. (Tenn. Sup.) 11 S.W. 943; Northern Cent. Ry. Co v. Mayor, etc., of Baltimore, 46 Md. 445; Eyler v. Commissioners, 49 Md. 269; People v. Chicago & A. R. Co., 67 Ill. 118; Dygert v. Schenck, 23 Wend. 446; 1 Thomp. Neg. 328, 343; Louisville & N. R. Co. v. State, 3 Head, 523. In most of the American states, however, this common-law rule, so far as applicable to railroads and like companies, has been abrogated and superseded by special statutes. The adjudications upon the relative rights of railroads and the public are in harmony in applying the common-law rule--declared as well by statute--that when the railroad constructs its track across a highway or street it must make and maintain suitable crossings. They are largely in harmony, too, in holding that when highways are laid out across a railroad it is the duty of the owner of the latter to construct proper crossings, but they are in conflict on the question as to whether such owners are entitled to damages by way of compensation for making such crossings, as well as to the measure of such damages in the respective jurisdictions where the right of the railroad to damages is recognized. Prior to the decision of the case of Old Colony & F. R. R. Co. v. Plymouth Co., 14 Gray, 155, it had never been judicially determined that a railroad corporation which has, in the ordinary course of business, under an act of incorporation, built a road, and had it in full operation, could recover damages for injuries occasioned by laying out public highways over it. In this case Chief Justice Shaw said that such a corporation is entitled to damages for land taken by the laying out of the public highway across its railroad, subject to its use for such road, and for the expense of erecting and maintaining railroad signs and cattle guards at the crossing, and of flooring the same, and of keeping it in repair, or for any increased liability from accident for the increased expense of ringing the bell, or for its liability to be ordered by the county commissioners to build a bridge for the highway over its track. In Illinois Cent. R. Co. v. City of Bloomington, 76 Ill. 447, it was held that "corporations, when brought into existence, except so far as may be otherwise provided in their charters, or the general laws which enter into their charters, become liable to perform all the duties to the public that may be required of natural persons to the extent that they are capable of performance, and they are entitled to protection in their rights to the same extent as natural persons"; and that "where, long after the construction of a railroad, a street was extended so as to cross the same, and the city passed an ordinance requiring the railway company to make a safe and proper crossing by grading the approaches of the street at the crossing, there being nothing in the charter of the company imposing such duty, or any such duty imposed by general law in force at the time the company was created, it was held the company was not liable to this new burden any further than might have been required of an individual, and that, as the whole burden was sought to be placed upon the company without regard to benefits, the ordinance was in violation of the constitution, and could not create any liability upon the company, and that the legislature itself could not impose such burden without making compensation. In Miller v. Railroad Co., 21 Barb. 513, it was he that the legislature could not, under the usual reservation to the legislature, in the charter of a railroad company, of the power to alter, modify, or repeal it, pass a subsequent act requiring the railroad company to cause a proposed new street or highway, laid out by the commissioners of highways, to be taken across their track, and to cause all necessary embankments, excavations, and other work to be done on their road for that purpose, at their own expense. This, case, however, was subsequently overruled in Railroad Co. v. Brownell, 24 N.Y. 345, hereafter referred to. In Minnesota (State v. District Court, 44 N.W. 7) it was held that, upon the laying out of a public highway across the track and right of way of a railroad company the latter is not entitled to compensation for providing and maintaining cattle guards and sign boards at the new crossing, such requirements being a legitimate exercise of the police power of the state; but it was further held that it was entitled to compensation for planking the road way where it crosses the railroad tracks, and for the maintenance of the planking. In Massachusetts C. R. Co. v. Boston, C. & F. R. Co., 121 Mass. 126, it is said: "A railroad corporation across whose road another railroad or highway is laid out has the like rights as all individuals or bodies politic and corporate owning lands or easements to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures upon the land or changes in its surface absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition." And in Massachusetts and Maine it was ruled that the company was entitled to recover for lands taken by the laying out of the highway subject to use for railroad purposes. State v. Chicago, B. & Q. R. Co. (Neb.) 45 N.W. 469. The various cases allowing compensation, together with the varying measures of damages laid down, may be found in the following reports: State v. District Court (Minn.) 7 Lawy. Rep. Ann. 121, and note (s. c. 44 N.W. 7); Portland & R. R. Co. v. Inhabitants of Deering (Me.) 23 Am. & Eng. R. Cas. 51, and note (s. c. 2 A. 670); Boston & M. R. Co. v. County Com'rs (Me.) 10 A. 113; Commissioners of Parks & Boulevards v. Detroit, G. H. & M. R. Co. (Mich.) 52 N.W. 1083; Kansas Cent. R. Co. v. Board of Com'rs of Jackson Co. (Kan. Sup.) 26 P. 394; Chicago, K. & W. R. Co. v. Board of Com'rs of Chatauqua Co. (Kan. Sup.) 31 P. 736; Chicago & G. T....
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