Georgia R. & Banking Co. v. Maddox
| Decision Date | 09 August 1902 |
| Citation | 42 S.E. 315,116 Ga. 64 |
| Parties | GEORGIA R. & BANKING CO. et al. v. MADDOX et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the charter of the Georgia Railroad & Banking Company and the amendment thereto, it had lawful authority to lease its franchises, as to the transportation of both freight and passengers, to another, and in such franchises were included all rights and privileges necessary to conducting the business for which the company was incorporated, among which was the right to maintain yards at terminal points for the manipulation of trains. Such franchises of the company passed, by lease, to the Louisville & Nashville Railroad Company, and in part to the other defendants. The Louisville & Nashville Railroad Company had lawful power to lease part of the right of way of the Georgia Railroad & Banking Company, in Atlanta, to the Atlanta Belt Line Company, to be used as a terminal yard. The charter of the Atlanta Belt Line Company authorized it to accept from the Louisville & Nashville Railroad Company, as lessee of the Georgia Railroad & Banking Company, the right to use such terminal yard.
2. The Atlanta Belt Line Company had the statutory power to lease its road, property, and franchises to the Atlanta & West Point Railroad Company, and the latter company had, by its charter as amended, the right to accept such lease.
3. The traffic contract entered into between the Atlanta & West Point Railroad Company and the Louisville & Nashville Railroad Company, under the terms of which each of these companies acquired the right to use certain property of the other in the city of Atlanta, to facilitate the transportation of freight, was legal.
4. Where a railroad terminal yard is located, and its construction authorized, under statutory powers, if it be constructed and operated in a proper manner, it cannot be adjudged a nuisance. Accordingly, injuries and inconveniences to persons residing near such a yard, from noises of locomotives, rumbling of cars, vibrations produced thereby and smoke, cinders, soot, and the like, which result from the ordinary and necessary, therefore proper, use and operation of such a yard, are not nuisances, but are the necessary concomitants of the franchise granted. The terminal yard the operation of which is sought to be enjoined in this case was located, and its operation authorized, under statutory powers.
5. A railroad terminal yard, though authorized by statute, may become a nuisance by improper construction, or by subsequent improper operation.
6. Though the evidence in this case, both as to construction and operation, was conflicting, the granting generally of the injunction was erroneous; for properly interpreting the language used in the opinion filed by the trial judge, in the light of the strong and decided preponderance of testimony showing that the construction of the yard upon a grade was proper, it is manifest that he did not grant the injunction solely because the yard was not laid out upon a level. This being so, and the effect of the injunction being to entirely prevent even the proper carrying on of a lawful business instead of pointing out and restraining particular acts which, because unnecessary or unlawful, were nuisances, the judgment excepted to cannot be upheld; and moreover, save as to operations on the Sabbath, there was no evidence sufficiently clear and distinct to enable the court to designate any such acts as those just indicated, and specifically enjoin the commission of the same.
Error from superior court, Fulton county; Geo. F. Gober, Judge.
Action by J. E. Maddox and others against the Georgia Railroad & Banking Company and others. Judgment for plaintiffs, and defendants bring error. Reversed.
Jos. B. & Bryan Cumings, Sanders McDaniel, Dorsey, Brewster & Howell and King & Spalding, for plaintiffs in error.
H. E. W. Palmer, G. L. Bell, and B. H. Hill, for defendants in error.
The record shows that 24 residents and owners of dwelling houses at Inman Park, in the eastern portion of the city of Atlanta, and the trustees of 2 churches located there, filed a petition, with various amendments thereto, for an injunction against the Georgia Railroad & Banking Company, the Louisville & Nashville Railroad Company, and the Atlanta & West Point Railroad Company, to restrain the operation of a terminal yard, located on the right of way of the first-named company, adjoining Inman Park. The grounds upon which the injunction was sought were that such yard and the manner in which it was conducted was a nuisance, and that the damage resulting therefrom to the petitioners was special and irreparable. Inman Park was laid out in 1887 and 1888 as a residential, church, and school site, upon which valuable residences and churches were soon afterwards erected, and the park can be used for no other purposes. This park is bounded on its entire southern frontage by the right of way, 200 feet wide, of the Georgia Railroad & Banking Company. This company was incorporated, in 1833, as the Georgia Railroad, and its name changed to the Georgia Railroad & Banking Company by an amendment to its charter in 1835. Its railroad franchises, roads, rolling stock, etc., were leased to William M. Wadley and his assigns in 1881, and the Louisville & Nashville Railroad Company became the lessee through an assignment of the Wadley lease. On October 17, 1899, the Atlanta Belt Line Company was incorporated, under the general railroad law of this state, to construct a steam railroad from Oakland City, on the Atlanta & West Point Railroad, to a point on the Georgia Railroad at or near the eastern corporate boundary of the city of Atlanta. The road was so built. Its western terminus was about two miles west of the eastern terminus of the Atlanta & West Point Railroad, and its eastern terminus was about one mile and three-quarters east of the western terminus of the Georgia Railroad. On November 30, 1900, the Louisville & Nashville Railroad Company leased to the Atlanta Belt Line Company a part of the right of way of the Georgia Railroad & Banking Company, at the junction of the two roads, for terminal facilities; and it is upon this leased land that the terminal yard in question is now located. On September 12, 1900, the Atlanta & West Point Railroad Company, which was incorporated by the legislature before the enactment of the general railroad law of this state, had its charter amended so as to include three parts of the provisions of the general railroad law, to wit: First. The sixth paragraph of section 2167 of the Civil Code, which reads as follows: "To cross, intersect, or join or unite its railroads with any railroad heretofore or hereafter to be constructed, at any point in its route, or upon the ground of any other railroad company, with the necessary turnouts, sidings and switches, and any other conveniences necessary in the construction of said road, and may run over any part of any railroad's right of way necessary or proper to reach its freight-depot, in any city, town or village through or near which said railroad may run." Second. The 2173d section of the Civil Code, the power given by this section being: "To lease or purchase the property of any other such company and hold, use, and occupy the same in such manner as they may deem most beneficial to their interest." Third. The 2179th section, by which plaintiffs in error claim the Atlanta & West Point Railroad Company was empowered to purchase or lease the property and franchises of any other railroad company whose railroad shall connect with, or form a continuous line or system with, the railroad of such company, upon such terms as may be agreed upon. On November 30, 1900, the Atlanta & West Point Railroad Company leased the Atlanta Belt Line, with all its rights, property, and franchises, including the lease of that part of the right of way of the Georgia Railroad & Banking Company upon which the terminal yard in question is located. The Atlanta & West Point Railroad Company began its transportation business over the Atlanta Belt Line, and its use of the terminal yard, on or about January 1, 1901. Under a traffic contract between the Louisville & Nashville Railroad Company and the Atlanta & West Point Railroad Company, the latter was granted the joint use of the Georgia Railroad & Banking Company's terminals in and near Atlanta, and of its offices, station buildings, freight depot, coal chutes, water tanks, platforms, and yards, and the Atlanta & West Point Railroad Company granted to the Louisville & Nashville Railroad Company the equal use, in common, of its warehouses and grounds near Decatur and Butler streets, its freight warehouse near Loyd street, and its tracks and terminal yard, on the right of way of the Georgia Railroad & Banking Company, at and near Inman Park.
The petition for injunction, and the amendments thereto, aver that the original lease of the Georgia Railroad & Banking Company to William M. Wadley was void because unauthorized by that company's charter; that, for the same reason, the lease by the Louisville & Nashville Railroad Company of the part of the right of way of the Georgia Railroad & Banking Company to the Atlanta Belt Line for terminal facilities was void; that there was no physical connection between the Atlanta & West Point Railroad and the Georgia Railroad, as the eastern terminus of the former road was at Nelson street bridge, in the western part of the city of Atlanta, and the western terminus of the Georgia Railroad was in the center of the city; and that, therefore, the terminal yard at Inman Park was located in a place not authorized by law, which made it a nuisance per se. The petitioners also contended that the yard could be located on the Atlanta Belt Line where...
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