Hanbury v. Woodward Lumber Co.

• Decision Date: 13 December 1895
• Parties: HANBURY et al. v. WOODWARD LUMBER CO. et al.
• Court: Georgia Supreme Court

26 S.E. 477

98 Ga. 54

HANBURY et al. v. WOODWARD LUMBER CO. et al.

Supreme Court of Georgia

December 13, 1895

Syllabus by the Court.

1. Where the owner of a tract of land causes the same to be laid off into lots, with intervening streets, which latter are, in the act of appropriation by the owner to that use, expressly "dedicated and set apart for all time to come, primarily for the special use, benefit, and convenience of the persons who might thereafter purchase, own, or occupy any of said lots, and incidentally for the general use of the public," the public, under such a grant, acquires in the premises so appropriated for streets no greater interest than is necessary to a reasonable and proper exercise of the incidental right of way conferred upon the public by the act of dedication.

2. In such a case, the purchasers of the lots abutting on such streets become the owners of the fee in such streets, and notwithstanding the easement in the public, are authorized to exercise over the property so covered by the streets such use as may not be inconsistent with the exercise upon the part of the public of its right of way. It is otherwise where the fee to the premises covered by a public street is in the municipal corporation, and not in the abutting lot owners.

3. Where the fee to such premises is vested in the abutting lot owners, and a municipal corporation holds only an easement as for a right of way, the municipal corporation may, with or without express statutory authority, in the exercise of its general discretion touching the control of the public ways permit the owner of the fee to appropriate to his own private personal use that portion of the land covered by such street which is opposite to his abutting lots, provided such use be not inconsistent with the reasonable exercise upon the part of the public of its concurrent right of way.

4. Whether or not the use so authorized could be enjoyed by the owner of the fee without impairing the right of the public in the exercise of its right of way is, primarily, a matter for the municipal authorities; and this court, at the suit of a private citizen not the owner of property abutting upon such portion of the street so appropriated, will not, by injunction, control them in the exercise of such a discretion in favor of the owner of the fee, unless it has manifestly been abused.

5. Where a railroad company and another are the owners of property lying upon the opposite sides of, and abutting upon a street the fee to which is in them, it is, primarily, no abuse of discretion for the municipal authorities, holding the mere easement as for a right of way, to authorize such lot owners to so construct across such street a railroad track as to connect the premises of the two respective lot owners, provided the proposed plan of construction be not inconsistent with the reasonable exercise upon the part of the public of its right of way.

6. Whether or not such track may thereafter, because of the manner of its construction or the manner of its use, become a nuisance, and liable to abatement as such, is a question which is not involved in the present controversy.

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

Action by T. E. Hanbury and others against the Woodward Lumber Company and another to enjoin the laying of railroad tracks across a street. There was a judgment for defendants, and plaintiffs bring error. Affirmed.

Hillyer, Alexander & Lambdin, G. A. Howell, and C. D. Hill, Sol. Gen., for plaintiffs in error.

Rosser & Carter, John B. Goodwin, and Dorsey, Brewster & Howell, for defendants in error.

ATKINSON J.

We are not now to consider whether, in a proceeding to condemn as for a public way the property of the citizen, the public acquires a greater interest in the property condemned than is necessary to the enjoyment of the right of way; nor are we to inquire whether, in such a case, the public would be authorized to impose upon the land seized to public use a servitude other than that for which it was condemned. Condemnation proceedings operate upon the unwilling, and, of necessity, are construed most strongly in favor of the person whose property is being seized. But in the present case we are to deal with the rights of the parties claiming the right to use the tract occupied as a street as parties willing to contract, and...