Davis v. East Tenn.

• Decision Date: 13 July 1891
• Citation: 87 Ga. 605,13 S.E. 567
• Court: Georgia Supreme Court
• Parties: Davis v. East Tennessee v. & G. Ry. Co.

13 S.E. 567

87 Ga. 605

Davis

v.East Tennessee

v.& G. Ry. Co.

Supreme Court of Georgia.

July 13, 1891.

Railroad Companies — Construction op Road-Damages for Using Street.

1. Neither by express grant nor by necessary implication has the E. T., V. & (x. Ry. Co. any authority to construct and operate its railway longitudinally upon the public streets of the city of Macon.

2. In an action by the owner of abutting property against the company for damage to the freehold and for diminishing the annual value of the premises for use there can be no recovery as to the freehold where the market value has been increased, but as to the latter there may be a recovery, notwithstanding such increase in the market value. A wrong-doer cannot set off increase of market value, caused by his wrongful act, against loss of rents and profits occasioned thereby.

3. Evidence as to a matter not covered by the declaration is not admissible.

(Syllabus by the Court.)

Brror from superior court, Bibb county; A. L. Miller, Judge.

Action by Ellen Davis against the East Tennessee, Virginia & Georgia Railway Company to recover damages. Judgment for defendant. Plaintiff brings error. Reversed.

Gustin, Guerry & Hall, for plaintiff in error.

Bacon & Rutnerford, for defendant in error.

Bleckley, C. J. 1. The Macon & Brunswick Railroad, extending from Macon to Brunswick, was the property of the state. By virtue of certain acts passed in 1879 it was first leased and then sold to a company which one of these acts incorporated by the name of the "Macon & Brunswick Railroad Company." See Acts 1878-79, pp. 115-122. The twelfth section of that act contains these clauses: That the lessee company which the act provides for "shall have full power and authority to survey, lay out, construct, equip, use, and enjoy a railroad from the city of Macon to the city of Atlanta, " and divers others; "and shall further have power and authority to connect said roads, or either of them, at eachterminus, with the roads of other companies constructed to said terminus, or which may hereafter be constructed to the said terminus." The thirteenth section requires the company or the lessees to " proceed, within one year or less time after the date of the execution of said lease, to build and put in good running order a railroad of five-feet guage, or the same guage with the Macon and Brunswick Railroad, between the city of Macon, in the county of Bibb, and the city of Atlanta, in the county of Fulton, and finish the same within-five years from the execution of said lease; with the right to unite their tracks with the tracks of the roads now built or that may hereafter be built into said cities, by which cars may be transferred, without breaking bulk or detention, from road to road, at said cities." The evidence in the record indicates that the railroad from Macon to Atlanta was constructed by the Macon & Brunswick Railroad Company under and by virtue of these statutory provisions, and that, with the consent of the municipal government of the city of Macon, a part of the line was located and constructed along Wharf street, one of the public streets of the city. This occupation of the street was in pusuanceof a contract between the company and the city authorities, by which the company agreed to pay to tho city $2,000 per annum for the privilege; and this payment has been regularly made from year to year. The main line along the street had already been constructed and was in use when the plaintiff, Mrs. Davis, in 1884, purchased two city lots abutting on the street. These lots she improved by erecting upon them a dwelling-house and a blacksmith, carriage, and paint shop, afterwards used for carrying on a carriage and wagon manufacturing and repairing business. The evidence indicates that, after the plaintiff purchased, and her occupancy commenced, the main track was removed from its original position, and placed several feet nearer to her property; and also that a second side track was constructed in front of her premises. The defendant is the successor of the Macon & Brunswick Railroad Company, and has all its rights and privileges, including the right, if any, to occupy and use the street in question as a location for its line of railway. The first question is whether its occupation of this street is lawful or unlawful. It was settled by the decision of this court in the case of Daly v. Railroad Co., 80 Ga. 793, 7 S. E. Rep. 146, that power to authorize the public streets of the city of Macon to be occupied and used as the route of a steam railway resides exclusively in the legislature of the state, and that the municipal government is without authority to grant such a privilege to a railway company. No express grant by the legislature to the defendant or to any of its predecessors has 'leen produced. The Code declares in section 719: "Public highways, bridges, or ferries cannot be appropriated to railroads, plank-roads, or any other species of road, unless express authority is granted by some constitutional provision of their charter." Highways, in the broad sense, include streets. Elliott, Roads & St. 1, 2, 12, 13; 1 Abb. Law Diet. 562; 1 Bouv. Law Diet. 750; 2 Bouv. Law Diet. 672; And. Law Diet. 981; 9 Amer. & Eng. Enc. Law, 362. This section of the Code had its origin in the Code of 1863, and was of force when the above-quoted legislation was enacted in 1879. Construing it as applying to streets as well as to public roads in the country, it would be decisive against any implied grant of authority to build a railroad along Wharf street in the city of Macon, however strong any implication of such authority might be. This court, in Railroad Co. v. Mann, 43 Ga. 200, appears to have treated the matter of the section as probably applying to the streets of a town; but, without ruling definitely on this question, we can rest our decision in the present case on the general doctrine that no authority not granted in express terms would exist unless it arose by necessary implication. "Though 'the grant of land for one public use must yield to that of another more urgent, ' and though 'every grant of power is intended to be efficacious and beneficial, and to accomplish its declared object, and...