Doe v. The Ga. R.R.

• Decision Date: 31 March 1846
• Docket Number: No. 76.,76.
• Parties: John Doe, ex dem., William A. Carr, plaintiff in error. vs. The Georgia Railroad and Banking Company, defendants in error.
• Court: Georgia Supreme Court

1 Ga. 524

John Doe, ex dem., William A. Carr, plaintiff in error. vs. The Georgia Railroad and Banking Company, defendants in error.

No. 76.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

For the facts of the case, and the errors assigned, see the opinion of the supreme Court, delivered by his honor Hiram Warner.

Lumpkin, Judge, being a stockholder in the Georgia Railroad and Banking Company, gave no opinion in the case.

H. and T. R. R. Cobb and William H. Hull, for the plaintiff in error.

T. R. R. Cobb argued as follows:

The right of way is an incorporeal hereditament, a mere easement growing out the freehold winch remains ill the grantor.—(Jorteryn vs. Van Brunt, 2 John. 357, 15ib. 447; Gidney vs. Earle, 12 Wei.. 98

The freehold remaining in the grantor, ho is entitled to possess and use it in very manner consistent with the right of passage. And for any exclusive apropriation, he may maintain trespass to his possession, or ejectment to recover bacK.—1 Burrow, 143; Conteryn vs. Van Brunt, 2 John. R. 363; Gidney vs. file, 12 Wen 98; 15 John. R. 447; Trustees of the Presbyterian Soc. in Warloo vs The Auburn and Rochesier R. R Co. 3 Hill, (N. Y.,) 567.

This being the rule of law, even if the, defendants had a right of way over the premises in dispute, by grant ROM plain iff, he could maintain ejectment against them for any exclusive possession of it. The building of a depot is such an exclusive possession. —Cortelyn vs. Van Brunt, 2 John. 357; Lyman vs. Arnold et al. 5 Mason, 195; 3 Kent 419.

Even if the grant of the right of way would convey the right of building a depot, the accepting of a deed to a specific number of lots for the Purpose of erecting a depot thereon, would restrict the company to those lots, so long as they relained the land so conveyed.—Goodman vs. Gilbert, 9 Mass. 510; Phelps vs. Townsend 8 Pick. 392.

If the deed from Carr to the railroad company, as to the right of way, did not cover the premises in dispute, the next question is: Is there anything in the charter of the company which would defeat this action? and this brings up more directly the errors complained of in the court below.

Before entering upon this investigation, it might be well to refer to some of the rules governing the construction of such statures.

A statute in favor of a corporation or particular persons, and in derogation of common right, should be strictly construed."—Spraguevs. Birdsall, 2 Conn. 419; Coolidge vs. Williams. 4 Mass. 14u; 11 Pet. 46; 4 Hill, (N. Y.,) 76, 92; 3 John. Cases, 107; Bur. 377.

"Every statute authority in derogation of the co mmon law, to divest the title of one and trans er it to another, must be strictly pursued, or the title will not pass."—Sharp vs Speir, 4 Hill, 76; Sharp vs. Johnson, 4 ib. 92.

Railway acts are to be construed strictly against the party obtaining thern, and hberallv for the public.— Parker vs. The Great Western Railway Co. 7 Scott, N. R. 835."

'' An affirmative statute (without a negative expressed or implied) does not take away the common-law right, and the party may make his election, to proceed under the statute or at common law.''—1 a chitty 's Gen'l Prae. 26; 1 Comyn Actions upon Stat. C. 6 Bac. Abr. 376. and casus cited; CriUenden vs. Wilson, 5 Cowen 165; 5 John. R. 175; 10 ib. 389; 13 ib. 322.

The first section of the amended charter of the Georgia Railroad Company, passed in 1836, reads as follows: "From and alter the passing of this act, the 11th sect, of (the act of Incorporation) he and the same is hereby repealed, and that in all cases in which disagree. dement may exist, or may hereafter arise between individuals or incorporations and the Georgia Railroad and Banking Company, as to the right of way or damages to property, the disagreement shall be settled as prescribed in the 15th section " (of the charter of the Central Kailroad.)—Prince, 359.

The 15th section referred to, reads as follows: " When any person shall feel himself aggrieved or injured by the said railroad being cut or carried through hisland, or by The use of lumber or other materials from any lands in the neighborhood of said road, or by any other works of the company; or when the said company cannot agree with any person, through or on whose land the said railway or appendages shall he conducted, or from whose land timber or other materials shall be taken for the use of the said road, as to the damage sustained, the amount of such damage or injury shall be ascertained and determined by the written award of three sworn appraisers, all of whom shall be disinterested freeholders of the county where the land in dispute lies; to be chosen, one by the company, one by such owner, if he shall think proper, and one by the inferior Court of the county where such land lies, or by any three of the justices of said court in vacation. But if such owner shall decline to appoint an appraiser, then two to he appointed by the Inferior Court, &c, and the decision shall vest in the company the fee simple of the land in question, and, for the other party, a judgment lor its value thus ascertained, which may be enforced by the ordinary process of said court, &c.—Prince, 331.

A proviso to said section reads: "Provided that no difference or disagreement between the company and any landholder shall operate by injunction or otherwise to suspend the progress of said work, hut the same shall in all cases be continued without interruption on adequate security being given by said company to the landholder to pay such damages as shall be assessed in manner aforesaid."— Prince, 332.

The prerogative exercised by the Legislature in passing this statute, is the highest known to the laws of the land, viz: taking private property for public use. "Without arguing here the question of the constitutionality of such acts, it may be well to refer to the tacts, that such grants by the Legislature, in the different States, when sustained, have been upon the single principle, that just compensation was previously provided.— Beekman vs. Saratoga and Schenectady R. R. Co., 3 Paige R. 45.

Upon these sections I would remark:

1st. The operation of the statute is to vest not the right of way, but the fee simple in the company. It does not merely append an easement to the land, but entirely divests the title from the landholder.

2d. The section adopting the 15th section as a part of the charter of the Georgia Railroad and Banking Company, expressly restricts it to " all cases in which disagreement, may exist or may arise, as to the right of way or damages to property." Can it be made to apply to a case where there is no disagreement-but on the contrary a deed has been given to the right of way, and there is no complaint of damage done property upon the way?

The Legislature have declared this work of public use, and those persons through whose land it must pass, if they will not agree upon terms with the company for the right of way, the Legislature have prescribed a mode by which the company may divest them of their title and vest the fee simple in themselves. Is not the doctrine monstrous in the extreme that the landholder—who has done everything that the charter was intended to force him to do—should still be subject to have the fee simple of his land wrested away from him and vested in the company. If the application was now at the instance of the company, under their charter, to obtain the fee simple to this land, would not a plea of a deed of right of way accepted by the company be sustained by the curt? The answer of the court would be to them, " You have agreed with the landholder—it is not a case of disagreement contemplated by your charter."

This is not only the answer of the law, but of justice. Necessity and the public benefit are plead as excuses for depriving the landholder of his property. Yielding to that necessity and the public benefit, he voluntarily gives what they require. Can the law wrest more from him? If the strict letter would, (which in this case it does not,) the necessity of the case being the basis of its constitutionality, —that necessity tailing the law would become unconstitutional—Ratione eessante, cessat ita lex.

In this view then of this statute, there being no disagreement between the par.lies, the defendants having accepted a deed to the right of way, must stand or fall by that deed.

In this connection we may properly notice that part of his Honor's charge, which says:

"That in the present case where a deed granting the right of way through the plaintiff's land had been made by plaintiff, and the defendant had located the road under the belief, that the grant had been pursued, it was necessary for the plaintiff to give the proper officers of the company notice of his considering himself aggrieved and requiring a proceeding under the provisions of the charter to assess the damages. That as no such notice had been given, the plaintiff could not in law recover."

His Honor takes for granted two facts on which we would, if allowed, join issue:

1st. That the defendants located the road under the belief that the grant had been pursued; and

2d. That no notice was given of the plaintiff's feeling himself aggrieved. However, if the facts were so, his Honor's law is certainly new. A, owning two adjoining lots of land, sells and conveys one to B—B instead of possessing himself of the one which he purchases, takes possession of the other, still the property of A—under the belief, if you choose, that it is the one he purchased. Has A no right of action against B. without first giving him notice of his mistake?

B, as every one who purchases property, bikes possession at his own peril, and if his title proves to be invalid, he is a trespasser, as against the legal owner.

When the railroad company went to 1 cate their road under the grant of the right of way, it was for them to see to it that they pursued the grant. So soon as they overstepped the grant, they became trespassers and are liable as such. His Honor...