Guess v. The Stone Mountain Granite

• Court: Supreme Court of Georgia
• Writing for the Court: Hall, Justice
• Citation: 72 Ga. 320
• Decision Date: 28 February 1884
• Parties: Guess et al. vs. The Stone Mountain Granite, etc., Company.

72 Ga. 320

Guess et al. vs. The Stone Mountain Granite, etc., Company.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1884.

[72 Ga. 320]

[This case was argued at the last term, and the decision reserved. Jackson, Chief Justice, being related to parties, did not preside.]

Municipal Corporations. Corporations. Practice in Superior Court. Damages. Railroads. Streets and Sidewalks. Before Judge Hillyer. DeKalb Superior Court. March Term, 1882.

[72 Ga. 321]

Guess, Swift, Johnson, Winningham, and Nesbit and Smith, trustees, brought suits to the March term, 1881, of DeKalb superior court, against the Stone Mountain Granite and Railway Company, to recover damages for injuries to their property, alleged to be occasioned by the occupying and. obstructing by the defendant of a public street in the town of Stone Mountain, known as Church street. On Septembr 1, 1881, the company filed their bill against the defendants, alleging, in brief, as follows: It was chartered in 1870, and by its charter was given " the right to construct and operate a railroad from the village of Stone Mountain to and around the Stone Mountain, and to connect the same with the Georgia Railroad Company\'s road, with the latter\'s consent." In order to do this, it was necessary to run the road along some of the streets of the village. On December 1, 1869, the board of town commissioners passed an ordinance allowing the company the right of way through and across Main street and any other street necessary to be passed over or crossed to construct a road from the Georgia Railroad to the quarries at the mountain. The company has complied with the condition of the ordinance, namely, the payment of a rent or tax of $25.00 per year. In 1870, the road was built from the line of the Georgia Railroad across Main street and the company\'s land, into and along Church street, for about four hundred and twenty-five feet to the land of the company, and thence to the base of the mountain. This was used for a number of years, and then its use was discontinued until 1880, when the road-bed was again repaired, the road relaid and again put in use. The company has improved Church street by building rock walls and macadamizing the same; and all damage to anyone is denied. A light engine is used for running at a slow speed, not exceeding five miles per hour. The prayer is that past, present and future damages, by reason of the use and occupancy of the street, be determined, and upon their payment, that suits be enjoined.

[72 Ga. 322]

Defendants to the bill (plaintiffs in the common law actions) filed an answer and cross-bill, alleging, in brief, as follows: It was not necessary to run the track along the streets of the town, in order to connect with the Georgia Railroad. The ordinance confers no power to occupy Church street, and is a mere semblance of authority for a trespass. The present road is not like that used in 1S70, The original road was on the side of the street, did not alter the grade of the street, used trestles and not embankments, and was operated by horse power and not by steam. The obstructions built in 1870 disappeared years ago. The road built in 1880 occupies the entire street, and at places most of the sidewalk; consists of deep cuts and high embankments; it occupies Church street for nine hundred feet, and causes damage to the property owners, by rendering the street almost impassable, making it unsafe for the vehicles and passengers and jarring the houses. The company uses an old and dilapidated engine, which casts soot, smoke and cinders upon the premises and into the houses of the adjoining property owners; runs at irregular intervals; is not under good control; is dangerous to passers, and makes loud and unpleasant noises. In consequence of these things, and also of the erection of a shed for this engine near the property of Guess, and the danger of fire from the sparks, etc., of the passing engine, they have been greatly damaged. Church street and adjacent cross streets were dedicated for the use and benefit of adjoining property owners, and the fee thereto is in them, subject to the right of the public to use them as highways and of the corporate authorities to repair them, etc. By reason of the change of grade, the property of defendants has been rendered inaccessible and otherwise damaged. By reason of the institution of these suits and a subsequent spell of dry weather, Church street is in better condition than when the suits were begun. The company has no charter power to construct and use the line through this street; and if it had, sucn power would be unconstitutional. The prayer

[72 Ga. 323]

of the cross-bill was that the company be " enjoined from using or running a steam engine to propel cars or for other purposes, " along Church street, and for general relief. By amendment to the cross bill, damages were prayed as claimed in the common law suits.

The evidence was very voluminous and conflicting. In order to understand the points made, it will be necessary to give only the following summary:

The evidence on behalf of the complainant was, in brief, as follows: The company was chartered, obtained permission of the commissioners of Stone Mountain to build its road, built it, allowed it to fall into disuse, and subsequently rebuilt it, as stated in the bill. On the second building, the principal portion of the road did not alter the grade of the street more than a few inches. At one or two places, near the property of some of the plaintiffs in the common law suits, there was a grade of a few feet. In building the road, the company did not keep the street in bad repair longer than was necessary. They filled and macadamized the street, built rock walls, and rendered it much more passable than it was before. None of the property of the plaintiffs in the common law suits was rendered inaccessible. Taking into consideration the improvement of the street and the business done by the company, property owners on the street were benefited and not injured by the line. The engine used by the company was a second-hand wood burner, not suitable for general railway transportation, but reasonably suited for the purposes of the company. It did not cast more smoke, soot and cinders than an ordinary wood burner. There was sufficient room between the railroad and the sidewalk for vehicles to pass. "When the engine was put up at night, about six p. m., there was some noise from the escaping steam, which lasted for probably half an hour, until the engine had cooled. Church street extended a short distance from the church, and thence the road passed over the land of complainant.

[72 Ga. 324]

The evidence on behalf of the defendants in the bill was, in brief, as follows: The town of Stone Mountain was laid out by one Johnson, and Church street and its cross streets were laid out for the benefit of purchasers of property. They were worked out, and Church street extended to the base of the mountain. The original road was built, the obstructions...