Ocmulgee River Lumber Co. v. Ocmulgee Val. Ry. Co.

• Decision Date: 17 July 1917
• Parties: OCMULGEE RIVER LUMBER CO. v. OCMULGEE VALLEY RY. CO.
• Court: U.S. District Court — Southern District of Georgia

251 F. 161

OCMULGEE RIVER LUMBER CO. v. OCMULGEE VALLEY RY. CO.

United States District Court, S.D. Georgia, Western Division.

July 17, 1917

Hardeman Jones, Park & Johnston, of Macon, Ga., for plaintiff.

W. S Mann, of McRae, Ga., and Hall & Grice, of Macon, Ga., for defendant.

SPEER District Judge.

The pleadings and the evidence in this case disclose the fact that the Ocmulgee Valley Railway Company has constructed a short railway, which purports to extend from Lumber City to a point in the pine woods some miles short of Jacksonville Telfair county, Ga. Jacksonville was once the courthouse town of the county, but for this purpose has long been abandoned. It might be termed a river town, but for the fact that it is something more than a mile from a landing on the Ocmulgee.

The Ocmulgee Valley Railroad is not a prosperous artery of commerce. During last year it spent nothing for its upkeep paid its officers no salaries, and charged off nothing for depreciation. It remitted the duty of paying its state and county taxes to the plaintiff. For the rails it uses it has never paid a dollar. This is also true of all its rolling stock and other railway material. Depots, platforms, terminals, and other such attributes of the railway are wholly nonexistent. Its president testified that he did not believe it possible that it would ever pay its operating expenses. He did not think it could be sold. Indeed, he doubted if it could be given away to any one under obligation to continue its operation. He was equally skeptical as to the possibility of bonding the property. The condition of the road and the roadbed is not less calamitous. Generally, its supports are rotten, and in at least one place crossing a stream or other depression, the stringers having rotted away, the passing train is upheld only by the rail.

This railroad, it is alleged, has appropriated the rolling stock, steel rails and other railway material of the plaintiff, it is insisted, to the value of $100,000. This bill in equity is brought to obtain a decree directing the restoration of this railway material to the true owner; this, it is insisted, is the Ocmulgee Lumber Company. The bill charges, and the answer admits, that this material was the property of the plaintiff. It had been engaged in the manufacture of pine lumber at Lumber City. Its mills having been destroyed by fire, the plaintiff was left with this material. The bill charges, and the answer admits, that neither the defendant nor any one has paid anything to the plaintiff for this property. It is, however, insisted that the plaintiff's effort to secure redress must be denied, because its property has been dedicated to a public use, in which use it is also alleged the plaintiff has acquiesced. The plaintiff and the defendant, both corporations, could only act in a corporate capacity. It is not pretended that any such corporate action authorized a sale.

It is moreover, plainly apparent from the oral, and particularly from the documentary, evidence that there was no sale of any sort by anybody of the steel rails and other railway material of the Ocmulgee Lumber Company. It is true that there were certain negotiations looking to such sale. The minutes of the defendant company exhibit a resolution authorizing the purchase of this property from C. F. Smith, trustee, for $94,500, if the authority for such purchase should be given by the Georgia Railroad Commission, but no authority was given by the Commission, nor was any application made to the Commission for such authority. For whom C. F. smith was trustee is gravely in doubt. At one time he testified that he was trustee for his wife; at another, that he was trustee for certain unnamed and unknown promoters of the railway; and at another time, that he was trustee for his sons, and perhaps other relatives, who were to share, to use his expression, in the 'cutting of the melon.'

Counsel for the defendant, while contending that Smith bought the property, declare they do not know whether it was for himself as trustee, or for himself as president of the Ocmulgee Valley Railway Company. There is, however, not the slightest dispute as to the fact that no purchase money was ever paid or secured. In truth, for a long time C. F. Smith was president of the plaintiff company, and the letters offered in evidence...