The Coast Line R.R. Co. v. Cohen

• Decision Date: 31 July 1873
• Citation: 50 Ga. 451
• Parties: THE COAST LINE RAILROAD COMPANY, plaintiff in error. v. OCTAVUS COHEN et al., defendants in error.
• Court: Georgia Supreme Court

50 Ga. 451

THE COAST LINE RAILROAD COMPANY, plaintiff in error. v. OCTAVUS COHEN et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873)

Injunction. Nuisance. Municipal corporation. Before Judge Hansell. Chatham county. At Chambers. November 5th, 1873.

Octavus Cohen, W. H. Tison, Henry Brigham, Joseph S. Claghorn, William Remshart, James W. Lathrop, George W. *Wylly, John D. Hopkins and W. W. Remshart, filed their bill against the Coast Line Railroad Company, containing, substantially, the following allegations:

That they are citizens and residents of the city of Savannah, and owners of real estate and other property within the limits of said city, and that, as citizens of said city and State, they are entitled to the free and unobstructed use and enjoyment of the public streets and squares of said city, except where they had legally parted with, or been lawfully divested of said rights; that the good health and sanitary condition of the city, and of themselves and families, depended on its thorough drainage and sewerage, and keeping the public drains in order; that public sewers had been constructed along Broughton and Bolton streets, and the drainage of said sewers is essential to the health of the citizens.

That the Legislature of the State of Georgia, by an Act approved October 10th, 1868, incorporated the Wilmington Railroad Company, with authority to construct a railroad from such point in the city as may be authorized by the Mayor and Aldermen, to any point or points on Wilmington Island, said Act giving no authority whatever to said company to pass through or over any street or square; that the General Assembly, by an Act approved August 26th, 1872, changed the name of said Wilmington Railroad Company to the Coast Line Railroad Company. That the General Assembly, by an Act, approved December 21st, 1866, authorized the Mayor and Aldermen, in their corporate and public capacity, to construct and operate carriage railways in any of the streets of said city, upon certain conditions; and among others, that they should not, in any manner, interfere with the free passage of vehicles, horsemen and footmen, and that no such railway should ever be built or laid on any street which runs through a square or a park, and that upon said conditions said city could let or farm said privilege; that from time immemorial the public squares have been used by the citizens, their families and children, as places of recreation, and that the passage of horse-cars will not only injure their beauty, and *produce noise and dust, but injure them as places of safe and pleasant recreation, and will defeat the ends for which they were set apart; that the use of said squares by horse-cars is an invasion of their rights unauthorized by law.

That the present Mayor and Aldermen, by an ordinance passed September 29th, 1873, at the request of the said defendant, designated the intersection of West Broad and Broughton streets as an initial point, from which said defendant might commence a line of road, running thence east along Broughton street to Habersham, thence south through Habersham to Bolton street; that said ordinance does not give any express authority to said defendant to use said streets or squares, but it is a mere license, leaving the risk and responsibility upon it to rest upon such rights as it might have derived from the General Assembly.

That the defendant was proceeding, without authority of law, to lay a track to be used by horse-cars from West Broad street through Broughton street, east to Habersham street, thence through Habersham street, and through the public squares, intersecting said Habersham street, south to Bolton street, and thence east through Bolton street; that Wilmington Island is east of said city, and that an initial point could be designated in the extreme eastern portion of said city, whence said road could, by a more direct route, without passing through any of said streets or squares, reach its destination.

That Habersham street runs through several squares, and Bolton street through Forsyth Park; that large public sewers are laid in both Broughton and Bolton streets, and that the construction and use of a railway over them would interfere with access to and repair of the sewers. That Broughton street was one of the most important in the city; that the defendant had torn up and obstructed the same and was still engaged in tearing up and obstructing the same, for the purpose of laying said track, and that it seriously interfered with the free passage along and across said street.

That said City Council had not attempted to use said streets, or to lay tracks thereon in their public capacity, and had not, *in said ordinance or any other, farmed or let said privilege to the defendant, but that the defendant was tearing up said street, on its own responsibility, without any legal authority whatever. That they had called upon the defendant to respect their rights as citizens, and to desist from tearing up the streets and squares, but it had refused to do so.

That complainants are the owners of property in said city, and as such owners and tax-payers, they contribute large sums to its support, and have a special interest in the amount of said taxes and the appropriation thereof.

That the sewers have been constructed at a large outlay, and that a large portion of the taxes paid by them have been applied to the thorough drainage of the city, and the improvement of the squares. That as tax-payers they had a right to insist that nothing should be done by the defendant to impair said system of drainage, or to prevent free access to said public drains, or to diminish the value of corporate property, or to endanger the lives of themselves or families, in the enjoyment of said public squares, or to divert said squares from their legitimate use. That the streets and squares are held by the Mayor and Aldermen in trust for the use of complainants and other citizens, and should be used for the benefit of the taxpayers.

That by the Act of 1866, the Mayor and Aldermen are allowed to let or farm the privileges therein mentioned, upon conditions advantageous to the tax-payers, and that the ordinance under which the defendant claims aright to traverse said streets, contains no condition in favor of said tax payers.

That the Mayor and Aldermen have no right to give away the franchises, the property of the tax payers, or to permit their use for any illegal purpose. That they have applied to the Mayor and Aldermen to prevent the unauthorized use of said streets and squares, and to use its power to abate public nuisances, to prevent the illegal obstruction of the streets and squares, but they refuse to interfere in their behalf and are guilty of a breach of trust in the premises.

That the injuries are immediate and irreparable in damages. *That one of the defendants, George W. Wylly, owns a lot on Broughton street, and that the special use of said street is an invasion of his rights, and that he is remediless at common law.

Upon these allegations complainants prayed for an injunction to be directed to the defendant restraining it from laying ahorse railroad track, or any other track, upon Broughton street, or Habersham street, or Bolton street, or the squares on Habersham street, until their rights could be heard and determined.

To this bill was attached, as an exhibit, an ordinance of the City Council of Savannah, passed September 29th, 1873, giving the initial point to the Coast Line Railroad Company.

The defendant filed a general demurrer to the bill for want of equity, and moved that the issue as made by the demurrer should first be considered and disposed of before it should be called on to answer, claiming the right to open and conclude the argument on bill and demurrer. The motion was overruled and counsel for defendant excepted.

The defendant then filed its answer to the bill, admitting that it was proceeding to construct a railway from the intersection of Broughton street and West Broad street, through Broughton, Habersham and Bolton streets, in the city of Sa-vannah. That the Wilmington Railroad Company was incorporated by Act of the Legislature, October 10, 1868, attaching a copy of the Act as an exhibit, and that the said Act was amended August 26, 1872, and the style of the company changed to the Coast Line Railroad Company, attaching a copy of this Act also as an exhibit.

That by said Act the defendant was authorized to construct a railroad from such point in the city of Savannah as may be authorized by the Mayor and Aldermen, to any point or points on Wilmington Island, with leave to pass conveniently near to the Cathedral and Bonaventure Cemeteries, which lie in the direction of Wilmington Island. That in pursuance of the authority and requirements of the said Acts, the Mayor and Aldermen, by ordinance, authorized the defendant *to build its track from the point of intersection of Broughton and West Broad streets, and that it was proceeding to construct its road from the point so authorized to Wilmington Island by the said cemeteries, in the most direct and feasible route, through Broughton, Habersham and Bolton streets, until restrained by the order in this case.

That the construction of its railway along certain streets of Savannah did not, and would not, in any manner, obstruct or interfere with the free use of the streets, as they had been accustomed to be used, nor would it interfere with the use and enjoyment of the squares of the city, as they had been accustomed to be used and enjoyed. That the complainants to the bill, who largely own and control the Savannah, Skidaway and Seaboard Railroad, had constructed a railway in the city of Savannah through Abercorn street, a street intersected with squares just as Habersham street is, and that that railroad is not considered by them as interfering with the use and enjoyment of said squares. If so, the same is being...