Daly V. Ga. v. Ga.

• Decision Date: 11 July 1888
• Citation: 7 S.E. 146,80 Ga. 793
• Court: Georgia Supreme Court
• Parties: Daly v. Georgia, S. & F. R. Co. et al. v. Georgia, S. & F. R. Co. et al. v. Daly.

7 S.E. 146

(80 Ga. 793)

Daly v. Georgia, S. & F. R. Co. et al.

v.Georgia, S. & F. R. Co. et al.

v.Daly.

Supreme Court of Georgia.

July 11, 1888.

1. Municipal Corporations—Control of Streets—Use by Railroads.

Acts Ga. 1857, p. 182, providing that the legislature may confer power upon municipal corporations to permit and sanction encroachments on their streets for a reasonable compensation in money to be paid into the city treasury, does not confer authority upon the mayor and council of a city to grant to a railroad company a block of land 80 by 480 feet, in one of the busy streets of the city, for a passenger and freight depot, to the injury of adjoining property holders.

2. Same—Compensation "in Money."

Nor is a return to the city of 10 acres of land granted to the railroad company such a " fair and reasonable compensation in money" as is contemplated by the statute.

8. Same—Legislative Authority.

The fee to the streets in the city of Macon is in the state, and without legislative sanction the city has no power to authorize a railroad company to lay its tracks and use its engines in the streets of the city; nor is such power conferred by the general clause in the charter giving to the city the power to control its streets.

4. Eminent Domain—Railroads—Tracks in City Streets.

The G., S. & F. R. Co. has no power under its charter to appropriate streets in the city of Macon which have been set apart for the use of the public, by the clause permitting it to build a railroad from Macon to Homersville, since this only confers the privilege of entering the city by condemning its right of way; nor by the provision granting it all the rights and privileges of the C. R. Co., since no such right is granted the latter company by its charter, and by the act of February 11, 1850, it is expressly required to compensate the owners of property through which it may pass for damages sustained.¹

Error from superior court, Bibb county; Richard H. Clark, Judge.

F. J. M. Daly, in pro. per., and Lanier & Anderson, for Daly. Guerry cfi Hall and Bacon & Rutherford, for Georgia, Southern & Florida Railroad Company et al.

Simmons, J. F. J. M. Daly, as trustee for his wife and children, and as guardian for Mary Dowd, and as a citizen and tax-payer of the city of Macon, fied his bill against the mayor and council of that city, against the Georgia, Southern & Florida Railroad, and against the Macon Construction Company, in whicli he alleged that the mayor and council of the city of Macon had, by an ordinance or resolution, granted unto the railroad company, over the protest of the complainant and other tax-payers and property holders of the city, an encroachment 80 feet wide and 480 feet long, on Fifth street, said encroachment being opposite the property owned by him as trustee, etc.; and that it would greatly injure and damagehis property; that the tenants had given him notice that they would give him up the premises in case said encroachment was granted; and alleged other special damage to him as a property holder. He also complains that the mayor and council granted the railroad company the right to lay its tracks on said Fifth street, longitudinally, one mile. He alleges that the mayor and council have no power, under the charter of the city, either to grant the encroachment, or to authorize the railroad company to lay its tracks longitudinally on said Fifth street; and that, even if the city had power to grant such encroachment, it could only do so upon a money consideration, having due regard to the rights of property holders; that five dollars is not such a consideration; nor is the fact that the mayor and council had prior thereto granted the railroad 10 acres of land, and the railroad company had agreed to return it to the city, a sufficient consideration, under the act of 1857. Other allegations are made in the bill as to the mode and manner of granting said privileges by the mayor and council, over the protests of taxpayers and property owners, it being alleged that several of the aldermen who voted to grant said privileges were disqualified from voting thereon, because of their being stockholders in the Macon Construction Company and said railroad company. The bill also alleges that the railroad company had never been authorized by the legislature to lay its tracks and run its steam-engines along said Fifth street, and that the mayor and council could not grant, nor could the railroad company accept, such a privilege without special legislative authority. Other allegations are made in regard to the insolvency of the railroad company, and as to the complainant's damages not having been first paid, etc., which, under the view we take of this case, it is unnecessary to notice here. The mayor and council answered the bill, and claimed that they did have authority to grant the encroachment, and to grant the privilege to the railroad company of laying its tracks longitudinally on said Fifth street. The railroad company and the Macon Construction Company also answered, but it is unnecessary to state the facts set out in their answers. It is also unnecessary to state the evidence contained in the affidavits read before the chancellor. Upon the hearing, the chancellor enjoined the mayor and council from granting the encroachment, and the railroad company from receiving it, and refused to enjoin the railroad company from laying its tracks on Filth street. To the granting of the injunction the mayorand council excepted, and to the refusal to enjoin the railroad company from laying its tracks upon the street, Daly excepted.

1. We think the chancellor was right in granting the injunction against this so-called encroachment. We do not think that under the act of 1857 (Acts 1857, p. 182) the mayor and council have the power or authority to grant such an encroachment as this. We do not, think that the legislature, when it passed that act, contemplated that the mayor and council would have the right or authority, or would ever claim the right, to grant to a railroad company a block of land 80 feet wide and 480 feet long, in one of the busiest streets of the city. Our idea is that the meaning of the act of 1857 is to allow them to grant small encroachments to property holders along the wholelength of the street, and on both sides thereof, in order to narrow the streets. It was never contemplated that they should have power to grant an encroach-ment which would jut out 80 feet into the street, and be an obstruction thereon. Such a grant as this was not an encroachment, but a dedication of the major part of the street for purposes entirely foreign to the object for which the street was laid out; and to allow the erection of a building 80 feet wide and 480 feet long in the street for a passenger and freight depot, would be an obstruction, instead of the encroachment contemplated by the act of 1857. It would obstruct nearly two-thirds of the width of the street, and would be a nuisance. "The king cannot license the erection or commission of a nuisance; nor, in this country, can a municipal corporation do so by virtue of any implied or general powers. A building or other structure of a like nature, erected upon a street without the sanction of the legislature, is a nuisance, and the local corporate authorities of the place cannot give a valid permission thus to occupy streets without express power to this end conferred upon them by charter or statute." 2 Dill. Mun. Corp. § 660. The power given by the legislature is "to permit and sanction encroachments for a reasonable compensation in money, to be paid into the city treasury." Acts 1857, p. 182.

2. If the mayor and council make a donation of 10 acres of land to a railroad corporation, and afterwards the railroad corporation returns the land to the city on condition that large encroachments upon its streets shall be granted to the corporation, is that a compliance with the act of 1857, under which the authority is given to "permit and sanction encroachments for a fair and reasonable compensation in money paid into the city treasury?" Did the legislature intend, when it passed this act, to give the mayor and council power to deal in real estate, by exchanging a portion of its streets for swamplands? Can the intention of the legislature, when it says "a fair and reasonable compensation in money, " be circumvented by first giving away land on the common, and receiving it back in exchange for a portion of its streets? We think not.

3. Even if the mayor and council had the power to grant encroachments, we do not think that in this case they had due regard to the interests of property holders who were affected by their action, as required by the act of 1857. This grant of 80 by 480 feet not...