Southern Ry. Co. v. Atlanta Ry. & Power Co.
| Decision Date | 07 August 1900 |
| Citation | 36 S.E. 873,111 Ga. 679 |
| Parties | SOUTHERN RY. CO. v. ATLANTA RAILWAY & POWER CO. SAME v. ATLANTA RAPID-TRANSIT CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Even if the provisions of Civ. Code, § 2219, are applicable to the crossing by a street railroad of any other railroad, the phrase, "heretofore or hereafter chartered by the legislature of this state," embraces a street-railroad company whose charter, though granted by the secretary of state, has been confirmed and made valid by an act of the general assembly. A company having such a charter may properly be termed one "chartered by the legislature."
2. No new burden or servitude is imposed upon a public street or highway by constructing and operating therein a street railway for the transportation of passengers, the cars of which are propelled by electric power.
3. That a street-railway company has, under its charter, authority to use steam as well as electricity as a motive power, is a matter of no consequence in testing its right in a given instance to cross a railway on a street under a municipal grant restricting the company to the use of electric power and where it is not seeking to employ steam power.
4. A railroad corporation which is permitted to construct its tracks across an existing city street or public road does so subject to the condition that it must submit to the increased inconvenience to it which may result from the growth and development of the city or country, and the consequent increase of travel in the usual methods along such street or road.
5. A company owning and operating a street railway of the character above indicated may, under the permission of the proper municipal or county authorities, construct its lines across the track of a steam-railroad company, and use the same, without instituting condemnation proceedings, or being required to pay damages.
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Actions by the Southern Railway Company against the Atlanta Railway & Power Company and the Atlanta Rapid-Transit Company. From judgments dissolving the injunction, plaintiff in both cases brings error. Affirmed.
Dorsey Brewster & Howell and H. A. Alexander, for plaintiff in error.
Goodwin & Hallman, John L. Hopkins & Sons, Rosser & Carter, King & Spalding, and Brandon & Arkwright, for defendants in error.
The Southern Railway Company brought suit in the superior court of Fulton county against the Atlanta Railway & Power Company and the Atlanta Rapid-Transit Company, corporations owning and operating lines of street railway in Fulton county, and in the city of Atlanta. The petition, in substance, alleged that plaintiff was in possession of, owned, and operated two lines of railroad, among others, leading from the city of Atlanta in a southeasterly direction, one running to the town of Ft. Valley, in said state, and the other to the city of Brunswick, Ga., and each ran through Fulton county, and crossed what is known as the "McDonough Public Road" at grade level on said public road at a place designated as "Henderson's Crossing," in the county of Fulton. In the transaction of its business it was obliged to run and does run across said McDonough public road upon the lines of its railway a great many passenger and freight trains every day, and this renders Henderson's crossing an exceedingly dangerous and hazardous one. It alleges that the Atlanta Railway & Power Company, owning and operating a system of street railways in the city of Atlanta and Fulton county, was preparing and intending to lay its tracks across the line of plaintiff's railroad at Henderson's crossing on the McDonough road; that it had prepared everything for this purpose, and it would be accomplished unless enjoined from so doing. To permit this it was charged, would render the use of the public crossing a constant menace of danger to the traveling public, and would at the same time do petitioner an irreparable injury in retarding the work and business in which it was engaged would cause irreparable and perpetual damage to petitioner, resulting in delay to its business, and in accidents to both persons and property while crossing at said point. It was charged that the Atlanta Railway & Power Company was operating its street railway and proposing to cross plaintiff's track by virtue of a certificate of the secretary of state issued on May 16, 1891, which certificate was affirmed by the legislature on August 31, 1891, and denies the power and authority of the defendant, under its charter and under the law by which it is operating, to cross the track at a grade level without its consent: that the purpose to cross the track would be consummated unless it is restrained by the court; and plaintiff prayed for an injunction restraining defendant from in any manner laying its track across the lines of railroad of petitioner at Henderson's crossing, in the county of Fulton. Upon this petition a temporary restraining order was granted by the court. An amendment was added to the petition to the effect that the Atlanta Railway & Power Company was chartered by the secretary of state, and not by the legislature, and that the general law of the state regulating the crossing by one railroad of the track of another, as embodied in Civ. Code, § 2219, restricts the right of crossing the track of another railroad to those railroad companies which are chartered by the legislature, and that, therefore, defendant is forbidden by law from crossing the track of petitioner. The right of plaintiff to cross McDonough road constitutes an easement of inestimable value vested in petitioner, and that, as the owner of such easement, it has a right to operate its road on said crossing, free from any hindrance or molestation whatever, save such as is incident to the ordinary use of said road by the public. The petitioner then specifies the damages which would result to plaintiff by increased delay of its business, wear and tear of its machinery, and danger to life and property from the crossing of its road by defendant. Defendant filed an answer to the petition, and denied the facts set up therein as to Henderson's crossing being dangerous and hazardous, as alleged. So far as any danger is concerned, it is caused by plaintiff's trains and traffic crossing over a public highway which existed 35 or 40 years prior to the building of its railroad. Defendant claims a right to cross the track under and by virtue of the provisions of its charter, granted in the first instance by the secretary of state on May 16, 1891, in compliance with the general law for the incorporation of railroads, approved September 27, 1881, and subsequently confirmed by chapter 343, Laws Ga. 1890-91, p. 169, approved August 31, 1891. It denies paragraph 8 of the petition, and says the language quoted in that paragraph from the act therein referred to was not in force on May 16, 1891, when it was first incorporated, nor on August 31, 1891, when its charter was confirmed by the general assembly of Georgia. It denied that its crossing plaintiff's road will have the effect of adding to the dangerous condition of the crossing; alleges it will only have the effect of diverting the travel on said highway from private vehicles and persons traveling on foot and horseback to and upon its cars, and, as a matter of fact, the result will be to largely minimize the chances for accidents; and that the building of its street railway on said public road will not create any additional burden upon said railway, and none upon said public road. It has a legal right to cross plaintiff's tracks with its street railway at grade level along and upon said McDonough road at Henderson's crossing. Defendant prays that plaintiff be enjoined and restrained from interfering with it in the construction of its railway on said public road at Henderson's crossing, and that the temporary restraining order granted against the defendant be dissolved. The answer, as amended, also denies the material charges in the amended petition of the plaintiff. A like petition was filed by the Southern Railway Company against the Atlanta Rapid-Transit Company to enjoin it from crossing its road on a street in the city of Atlanta. It appears that this road procured a franchise from the city of Atlanta to construct and operate its line along Decatur street and across the tracks of plaintiff to the city limits. Both these street railways procured like franchises from proper authorities to operate their railroads in Atlanta, and beyond the limits of the city of Atlanta to the city of Decatur. It was conceded that the issues in these two cases were practically the same; the only difference being that the Atlanta Rapid-Transit Company also had in its charter the power to use steam, but the city conferred upon it only the power to use electricity, and it did not propose to use any other motive power in the operation of its road. After hearing the evidence for plaintiff and defendants, the court denied the injunction prayed for in each case, and dissolved the former restraining orders granted. To these judgments plaintiff in error excepts. The grounds of error alleged are as follows: (1) Under the constitution and laws of Georgia private property cannot be taken or dámaged unless just compensation has been first paid; and the right of petitioner to cross Henderson's crossing was a valuable property right subsisting in it, and was embraced within the term "property" as used in the constitution; and the construction of the street-railroad tracks across the tracks of petitioner was a taking and damaging of petitioner's said property right. (2) Although it was thus preparing and threatening to take and damage petitioner's property, it had neither paid...
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