The Justices Of The Inferior Court Of Pike County v. The Griffin & West Point Plank Rd. Co

Citation15 Ga. 39
Decision Date28 February 1854
Docket NumberNo. 3.,3.
PartiesThe Justices of the Inferior Court of Pike County, plaintiffs in error. vs. The Griffin & West Point Plank Road Co., defendants in error.
CourtSupreme Court of Georgia

In Equity, in Pike Superior Court. Tried before Judge Stark, April Term, 1853.

This bill was filed by the Justices of the Inferior Court of Pike county, for the use of the people thereof, against the Griffin & West Point Plank Road Company.

The bill alleges, that the Company had seized and appropriated to their use, the public high-way, leading from the City of Griffin to the Flat Shoals, on Flint River, passing through three Militia Districts in the said county of Pike, and known as the Flat Shoals Road; that by fraud, and combination with the Commissioners of Roads in said districts, the Company had procured the appointment of Commissioners, as provided by the terms of their Charter, who had assessed, in one of the districts, no damages or compensation, and in the others, merely nominal compensation, for the use of the public road, as the site to be occupied by the plank road; that the Commissioners of Roads, in two of the districts, had, in accordance with the award of the arbitrators appointed, proceeded to execute a fee simple title to the public road, sixty feet wide, to the said Company.

The bill charges, that there was no necessity for the said Company to appropriate and occupy any part of the said public road with their plank road; and that by so doing, they have violated the provisions of their Charter, which, the bill alleges, confers no such right.

The bill charges, in order to show that no such necessity exists, that Mr. Heely, the contractor, had proposed to build the road for $300 less, per mile, if they would allow it to be laid down in a site different from that of the public road.

The bill charges, that the acts and doings of the Company, in appropriating the public road, &c., tend to the injury of complainants, as guardians of the interests of the people of Pike county, inasmuch, as if said Company shall be allowed so to do, they will be compelled, in compliance with the wishes of a large majority of the people of the county, to open a new road, along and near the site of the Flat Shoals road, thus occupied by the Plank-road, and that such public road, will cost the county of Pike, not less than $6000.

The bill prays that the Company may be enjoined, until security is given for such damages as may be recovered against them; that a perpetual injunction be granted, the deeds cancelled, and that the Company be decreed to pay such damages as complainants may have sustained, as the guardians of the pecuniary interests of the people of Pike county.

The defendants filed answers, denying all fraud charged in the bill, and alleging the perfect fairness of the whole transactions.

They also filed pleas, setting up the awards, with answers supporting them, denying all fraud. Also, a plea stating that since the commencement of the suit, the General Assembly of Georgia had laid out and established a new county, viz: the county of Spalding, in which new county, was included a large portion of the highway stated in the bill.

At the trial, the Court ordered the issues upon the pleas, to be tried at the same time with the main issues made by the bill and answers.

Counsel for the Plank Road Company, moved the Court to have the Grand Jurors in attendance and sworn, brought into Court, for the purpose of placing them upon the voir dire, to see if they, or any of them, were liable to challenge for cause. The Court granted the motion, and the Grand Jurors were each placed upon his voir dire, and various questions asked by the Court, as to "the formation and expression of an opinion as to which party ought to prevail in the cause"; and farther, "have you any wish or desire as to which party ought to succeed in this cause"; and those Jurors answering in the affirmative, were excluded, for cause.

By this means, the Jury were reduced below eighteen.— The Court then ordered talesmen to be summoned, who were sworn simply as Special Jurors, and not impaneled regularly as Grand Jurors. To this whole proceeding, the counsel for complainants objected; and the Court overruling the objection, they excepted thereto.

Counsel for the Plank Road Company objected to the whole array, on the ground that they were all citizens of Pike county; and that if the complainants succeeded in recovering damages for the obstruction of the highway, those damages would, by increasing the county funds, diminish the necessity for taxation, for the repair of the highways. The Court overruled this ob-jection, and this is assigned as error by the Plank Road Company.

The complainants offered to read an exemplification of the order passed in 1830, by the Inferior Court, opening the Flat Shoals Road. The Court refused to allow it to be read, because the fact was not denied. To this decision, complainants excepted.

The complainants then offered to read certain letters of his Honor, Judge Stark, to show at what time the application was first made to his Honor, for an injunction. The Court rejected this evidence, and complainants excepted.

The complaints then proposed to prove, by certain of their counsel, that the bill was presented to his Honor in August, 1850, and kept by him until 15th of Sept. 1850, when it was returned, with his sanction refused. The Court rejected the evidence, and complainants excepted.

The complainants then tendered in evidence, a notice, served on the 22d of July, 1850, upon the Plank Road Co., of their intention to resist the Company's usurping the highway; and requesting the Company to desist from its designs and acts, in taking, appropriating and obstructing the highway. The Court rejected this testimony, and complainants excepted.

The complainants then proposed to prove how much the Flat Shoals Road, occupied by the Plank Road, was worth per mile; and how much it would cost the county to obtain the right of way and build another road—all which the Court rejected, and complainants excepted.

Complainants then proposed, in various ways, to introduce proof, as to the necessity existing for the Plank Road Company to occupy and take the public highway. For instance, they proposed to prove, that the Plank Road Company could have got the right of way over a route off the Flat Shoals road; and one passing through a country not obstructed by mountain barriers, ravines, &c. The Court refused to let them introduce the proof, and they excepted.

Complainants then required defendants to produce their books, under a notice, for the purpose of showing the amountof tolls they had received. The Court refused to compel the defendants to respond, and complainants excepted.

Defendants then, in response to a notice from complainants, produced the book containing the Minutes of their Board of Directors. Complainants examined it, and then declined to introduce it. Defendants insisted the book was then evidence for either party, and offered it as such, which was objected to by the complainants, and the objection over-ruled by the Court; to which decision, the complainants excepted, and say it is error. The defendant then read, as evidence, from the Company's Minutes, a By-Law of the Company, as follows: "Passed 12th April, 1850—19th Sec All travel over the Plank Road for neighborhood purposes, shall be free of toll, to wit: such as going to church, funerals, mill, muster, Courts, elections, blacksmith shops, after physicians, medicines, and neighborhood visits of every kind. Notwithstanding, it was objected to by complainants—to which decision complainants except, and say it was error. Complainants then closed. Defendants introduced no other evidence. After argument of counsel, the Court charged, in substance, as follows:

The Justices of the Inferior Court of Pike County,

vs.

The Griffin and West Point Plank Road Company.

Bill, &c. Tried at Pike, April Term, 1858.

CHARGE.

(After a brief summary of pleadings,) charged as follows: This bill is filed to restrain the usurpation of a franchise by the Plank Road Company, and to recover damages for the injury, done to the county thereby. Since the filing of the bill, a portion of the public road alleged to have been illegally and fraudulently seized by the defendants, has been, by an Act of the Legislature, included in the county of Spalding, and with that portion of the road, you have nothing to do. Pike county has no interest in it, as is conceded by the complainants.— A right of way, is a right to pass over the lands of another— over a public road—every one has this right to pass, free.— The Flat Shoals Road, a portion of which is alleged to be fraudulently occupied by the defendants, to the exclusion of the public, is admitted to be a public road, duly established by express authority of law, or by proscription; in either case it is, or was, before its occupancy by the defendants, to all intents and purposes, a free public road. When this bill was first presented for my sanction, I refused to sanction it, chiefly because I thought the Judges of the Inferior Court were not the proper parties. Previous to the American Revolution, the public roads were parts and parcels of the royal prerogatives— they appertained to the Crown, and were called the King\'s Highways. By the Revolution, the State of Georgia succeeded to all the sovereign rights of the Crown: and hence, I thought all the public highways belonged to the State; and that this bill should have been brought by the State, or an information, at the instance of the Solicitor, for and in behalf of the citizens of the State. Besides this, I thought I saw a manifest impropriety, in the Inferior Court embarking in lawsuits in other Courts, except in cases expressly authorized by law; or, in cases where its right to do so, arises by necessary implication, from the exercise of some well defined right or duty. I also thought I saw an impropriety...

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