The Atl. v. Fuller

• Decision Date: 31 January 1873
• Citation: 48 Ga. 423
• Parties: The Atlantic and Gulf Railroad Company, plaintiff in error. vs. Thomas J. Fuller, trustee, defendant in error.
• Court: Georgia Supreme Court

48 Ga. 423

The Atlantic and Gulf Railroad Company, plaintiff in error. vs. Thomas J. Fuller, trustee, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Trespass. Railroads. Statute of limitations. Charter. Before Judge Sessions. Pierce Superior Court. September Term, 1872.

On August 26th, 1871, Fuller, as trustee, commenced suit against the Atlantic and Gulf Railroad Company, upon the following declaration: "The petition of T. J. Fuller, as trustee, showeth, that he has sustained great injury and damage from the Atlantic and Gulf Railroad Company, for that the said *defendant in the year 1858, without the consent of petitioner or authority of law, entered upon, built their road and ran their engines and cars through and across lot of land number two hundred and eighty-five, in the fourth district of said county, the property of petitioner, and has continued to appropriate and use said lot of land for the purposes aforesaid, from the aforesaid year to the present time, to the damage of your petitioner $1,000 00. Wherefore, " etc.

Counsel for the defendant moved to dismiss the action upon the following grounds:

1st. Because the declaration showed upon its face that plaintiff's claim was barred by the statute of limitations.

2d. Because the charter provides the mode of suit in cases arising from the location of the right of way by the defendant, and, therefore, trespass was not the proper remedy.

The motion was overruled and the defendant excepted.

The case was submitted to a jury, who returned a verdict in favor of the plaintiff.

The defendant assigns error upon the above ground of exception.

J. C. Nichols, by Z. D. Harrison, for plaintiff in error.

No appearance for defendant.

McCay, Judge.

1. Under our Code, section 2965, an owner of land may sue atrespasser, even if the owner has never had possession. This is a change of the common law, but it is a positive legislative provision, and is required by the circumstances of the country.

2. By the demurrer, the charges of the declaration are admitted. In this case, it admits that the defendant, without authority, and against plaintiff's consent, took, etc. The seven years bar is based upon presumption of a grant; this, in terms, admits there was no right, or claim of right. Title by prescription must be based on, at least, a claim of right. We *think, therefore, the plaintiff's declaration was not demurrable. The statute of limitations, as against a trespass, should...