The Ga. R.R. v. Hart

• Decision Date: 31 January 1878
• Citation: 60 Ga. 550
• Parties: The Georgia Railroad. v. Hart.
• Court: Georgia Supreme Court

60 Ga. 550

The Georgia Railroad. v. Hart.

Supreme Court of the State of Georgia

(January Term, 1878.)

Ejectment. Jurors. Deeds. Evidence. Lease. Before Judge BartlETT. Greene Superior Court. March Term, 1877.

On August 17, 1875, Hart brought ejectment against the Georgia Railroad for three lots of 1and at Union Point, adjoining its right of way. Both parties claimed under Morton— the railroad by deed made on March 28, 1838, conveying right of way the width of one hundred feet, on each side, from the center of the road-bed. This instrument contained the provision that the railroad should have the right, in fee simple, to all lands necessary for the use of the road on which to erect workshops, warehouses, or other buildings, with the requisite yard enclosures. Plaintiff claimed under chain of title from Morton, commencing with deed to Phinzy, executed on December 5, 1840. This line of title recognized the right of the railroad under its prior deed; therefore, the sole question was whether the land sued for, used as the evidence showed, was covered by such conveyance.

The defendant pleaded the general issue, possession under color of title for seven years, and prescription for twenty years. The evidence showed that the houses on the lots sued for *were erected by the railroad at some time between the years 1844 and 1854, for the use of its employees. The lots were not a part of its right of way, but joined it. The houses had been used for the purpose indicated almost constantly since their erection. Other testimony was introduced not material here.

The jury found for the defendant. The plaintiff moved for a new trial on the following grounds, to-wit:

1. Because the court erred in charging, that unless the jury believed that the lease or contract under which the defendant claimed title, was made for a specific time, and that time had expired, plaintiff could not maintain this action.

2. Because the court erred in charging, that the deed to the railroad authorized it to take land outside of the right of way. for buildings necessary for the road; that if the jury believed that defendant took possession under said deed, and that such buildings as were put on the premises were necessary for the road, and that it was necessary to take the land for them, then they should find for the defendant.

3. Because of the newly discovered fact that one of thejury who tried the case was the son of the stockholder in defendant.

The last ground was supported by proper...