Stewart County v. Holloway

• Decision Date: 13 April 1943
• Docket Number: No. 30018.,30018.
• Citation: 25 S.E.2d 315
• Parties: STEWART COUNTY. v. HOLLOWAY.
• Court: Georgia Court of Appeals

25 S.E.2d 315

STEWART COUNTY.

v.HOLLOWAY.

No. 30018.

Court of Appeals of Georgia, Division No. 2.

April 13, 1943.

Syllabus by the Court.

Under the evidence the title to the bridge steel, to recover which the trover action was brought, was in the plaintiff, and the trial judge, hearing the case without the intervention of a jury, erred in rendering judgment for the defendant.

Error from Superior Court, Stewart County; W. M. Harper, Judge.

Action of trover by Stewart County against Paul Holloway to recover certain bridge steel. To review an adverse judgment, the plaintiff brings error.

Judgment reversed.

R. S. Wimberly, of Lumpkin, for plaintiff in error.

T. Grady Head, Atty. Gen., and J. M. C. Townsend, Asst. Atty. Gen., for defendant in error.

SUTTON, Judge.

Stewart County brought an action of trover against Paul Holloway to recover certain bridge steel alleged to be its property. The defendant admitted refusal to deliver the property on demand, setting up that he did not claim the property in his own right but that he was holding it as custodian for the State Highway Department and denied that the plaintiff had any title thereto. The case was submitted to the trial judge, without the intervention of a jury, on the following agreed statement of facts: "In October, 1915, Stewart County caused to be erected a bridge of steel construction spanning the main stream of Pataula Creek on what is now State Route number 1, between Cuthbert and Lumpkin, Georgia, and also a shorter bridge of the same construction across another arm or branch of the creek just south of the main stream, these bridges being built by contract at a cost to the county of $3438. Under the act of 1919, pages 242 to 253, which acts are made a part of this agreed statement of facts, the State Highway Department of Georgia assumed jurisdiction of that part of State Route number 1 on which were located the bridges above referred to, and has since that time, up to September 5, 1941, continuously maintained such road and bridges as provided by law. Stewart County never procured any deeds to the land on which were located the bridges spanning Pataula Creek, and no deeds were given by Stewart County to the State Highway Department covering the property on which said bridges were located; but Stewart County operated and maintained this road on which said bridges were located as a public road for more than twenty years before said bridges were built, and the said State Highway Department Board has since 1919 maintained the same as a part of the State system of roads. On October 8, 1935, the State Highway Department of Georgia procured a deed from Mrs. Florence Oliver Crumbley to certain land as a right of way, and a copy of said deed is hereto attached as part of this agreed statement of facts. The property covered by said deed included 66 per cent. of the property on which the main bridge above referred to was erected, as shown by plat hereto attached and made a part hereof, but did not include any of the land on which the smaller bridge was erected. On or about the 11th day of September, 1941, the State Highway completed the erection of a new bridge spanning the Pataula Creek on Route number 1 in Stewart County on the above-mentioned right of way received from Mrs. Crumbley. On the 5th day of September, 1941, the State Highway Department of Georgia dismantled the two bridges above described, and the steel from said bridges is now in the possession of the defendant, Paul, Holloway, and the said Paul Holloway is holding such steel for the State Highway Department in his capacity as patrolman, and is not holding the same individually and does not claim title thereto. About 50 per cent. of the total quantity of said steel before said bridges were dismantled was on land covered by the Crumbley right of way above referred to, and about 50 per cent. was off this right of way and on land not covered by it. The market value of the whole of said steel is $2750."

The deed referred to as attached to this statement of facts was a deed from Mrs. Crumbley to the State Highway Department of the "right of way" for a road through her land to the width of 100 feet for part of the distance and 200 feet for part of it, and the attached plat showed the location of the bridges as stated in the agreed statement of facts, according to a recital in the bill of exceptions, but does not appear in the record.

The judge in a written opinion held that, "When the Highway Department designated the highway in question as a State-aid road it became invested with all the rights that Stewart County then and there had in and to said road. By expressly providing for reimbursement to the respective counties for the expense of roads constructed in a certain way, the conclusion is inescapable that it was not the legislative intent that the Highway Department should incur any other obligation to the counties in designating State-aid roads, " and that the plaintiff is not entitled to maintain and recover the steel described in the trover action. The exception here is to that judgment.

The situation with respect to the bridges here involved and the land on which they were located, at the time the State Highway Department took over the road as part of the State-aid road system in 1919 was as follows: Stewart County had operated and maintained the highway for several years but had never procured any deed to the land. In 1915 it had erected the bridges at its own expense. Nothing else being shown, it had acquired as to the road, at most, only an easement. The fee remained in the person who owned the land at the time the county constructed the road. "Ownership of the soil and the right to an easement are independent. The grantee of an easement is not the owner or occupant of the estate over which the right extends, but the right to the fee and the right to an easement in the same realty are independent of each other, and may well coexist even when vested in different persons." Donalson v. Georgia Power & Light Co., 175 Ga. 462(1), 165 S.E. 440, 442. "Nothing passes as an incident to the grant of an easement but what is requisite to its fair enjoyment." Georgia Power Co. v. Leonard, 187 Ga. 608(2), 1 S.E.2d 579, 581. The bridges were obviously not erected to improve the land but for the purpose of enabling traffic to continue on the road across Pataula Creek. Were they, as contended by the plaintiff, trade fixtures and as such removable, or did they, when erected, become part of the realty, or did they become the property of the State Highway Department, as contended by the defendant, when it assumed jurisdiction of the road under the provisions of the act of 1919 (Ga.L.1919, p. 242) as codified in the Code, § 95-1701 et seq.?

"Any thing intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Machinery, not actually attached, but movable at pleasure, is not a part of the realty. Anything detached from the realty becomes personalty instantly on being so detached." Code, § 85-105. The general rule at common law was that articles attached to the realty became a part thereof, but there was an exception to this rule in the case of trade fixtures. Charleston, etc., Ry. Co. v. Hughes, 105 Ga. 1, 23(4), 30 S.E. 972, 70 Am.St.Rep. 17; Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669: As stated in Holland Furnace Co. v. Lowe, 172 Ga. 815(2), 159 S. E. 277, 278: "When the ownership of land is in one person and of a thing affixed to it is in another, and the fixture is in its nature capable of severance without injury to the former, the fixture cannot, in contemplation of law, become a part of the land, but necessarily remains distinct property to be used and dealt with as personal estate." In the Hughes case, supra, railroad tracks were involved, and Justice Cobb, speaking for the court, referred with evident approval to several cases in outside jurisdictions in which the following were treated as trade fixtures: Buildings used as military barracks and hospitals during the Civil War and placed on the common of York, Pennsylvania, for military purposes; stone piers built by a railroad company as a part of its railroad on lands over which it had acquired a right of way; railway tracks; "structures placed upon the property for use by the company in its business." [105 Ga. 1, 30 S.E. 982, 70 Am.St.Rep. 17.] In Mayor, etc., of Gainesville v. Dunlap, 147 Ga. 344(4), 94 S.E. 247, it was held: "Where in order to reach the reservoir the city laid a water main through the lands of others under a lease or parol license which was silent as to the right of removal of the pipe or pipes, the laying of the pipes not being for the improvement of the realty, but for the use of the city in the operation of its waterworks, the pipes are in the nature of trade fixtures, and removable at any time by the city without the consent of the landowners." In Carr v. Georgia Railroad, 74 Ga. 73(2), it was ruled: "The authorities are to the effect that a depot building, erected by a railroad, not for the purpose of improving the inheritance, but to aid and assist the...