Smith v. The City Council Of Rome

• Decision Date: 30 September 1853
• Docket Number: No. 20.,20.
• Parties: William R. Smith, plaintiff in error. vs. The CiTy Council of Rome, defendant in error.
• Court: Georgia Supreme Court

19 Ga. 89

William R. Smith, plaintiff in error. vs. The CiTy Council of Rome, defendant in error.

No. 20.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1853.

Application for injunction. Decision by Judge Trippe, at Chambers, 27th June, 1855.

Wm. R. Smith prayed an injunction on the following facts: He was the owner of a parcel of land within the corporatelimits of the City of Rome, upon which lot there is a valuable stone quarry, worth $3,000, upon the bank of Etowah River; also a valuable sand bank, worth $1,000; and the piece of land is also of great value as a residence, viz.: $2,500. The Mayor & Council of Rome quarried large quantities of rock from the said land, removed trees therefrom, and thereby caused irreparable injury to the lot. The bill alleged that Rome was a growing city, and that the value of this quarry was increasing rapidly, and would be very great; that a part of the rock is limestone, and will be immensely valuable for burning of lime; that there is also a ferry landing on this lot, which communicates with valuable land on the opposite side of the river, and that the said corporation is destroying the usefulness of the said ferry landing. The bill prayed for an injunction.

The Mayor & Council answered, that upon the application of complainant, they had laid out two streets over his land, and declared the same public streets; that they have only cut down these streets so as to make them level and passable; and in so doing have used the rock for macadamizing some of the streets of the city, and building a few culverts; that the sand bank alluded to, is in the street. The value of the property was admitted, but the damage done denied; and especially, that it was irreparable.

The Court refused the injunction, and this decision is assigned as error.

Wright, for plaintiff in error.

T. W. Alexander, for defendant in error.

By the Court. —Benning, J., delivering the opinion.

In this case, we assume that the answer is true.

The answer says, in substance, that the complainant gave to the defendant the right to open two public streets through his land; that the defendant, in the exercise of this right, opened the two streets; that a "high rocky bluff" projects itself a part of the way across the track of one of the streets; that the defendant took from this bluff, at a point within the boundaries of the street, some rock, and used the rock in macadamizing the streets of Rome and in building culverts; and that the defendant claims the right, thus, to take and use such of the rock as is within the boundaries of the street.

The first question therefore is, whether the defendant has this right?

The gift, by the complainant to the defendant, was that of the right of way over his land. It was no more than that.

Is a gift of the right of way a gift of the earth, rock, trees, and other materials which may happen to exist within the boundaries of the way? Is the gift of the right of way a gift of all the gold that may exist beneath the surface of the way, the right to which is given?

In Goodtitle ex dem. Chester vs. Acker and Elmes, (I Burr. 143,) Lord Mansfield said: "1 Ro. Abr. 392, Letter B. Pl. 1, 2, is express, 'that the King has nothing but the passage for himself and his people; but the freehold and all profits belong to the owner of the soil.' So do all the trees upon it and mines under it (which may be extremely valuable.) The owner may carry water in pipes ...