The Rome Gas-light Co. v. Meyerhardt

• Decision Date: 31 August 1878
• Citation: 61 Ga. 287
• Parties: The Rome Gas-Light Company. v. Meyerhardt.
• Court: Georgia Supreme Court

61 Ga. 287

The Rome Gas-Light Company. v. Meyerhardt.

Supreme Court of the State of Georgia

(August Term, 1878.)

Easements. Notice. Decrees. Before Judge McCutchen. Floyd Superior Court. January Term, 1878.

Meyerhardt and wife filed their bill against the Rome GasLight Company. They alleged that they were the owners of two lots in the city of Rome; that defendant had unlawfully, and without their knowledge or consent, run its pipes across these lots; that they had erected valuable improvements, and in excavating a cellar had found one of defendant's pipes, which was put together in sections, so that it was liable to break and do irreparable damage if the dirt was dug from under it. They claimed the right to complete their cellar, and prayed an injunction to restrain defendant from using the pipe or pipes. By amendment Meyerhardt was stricken, and the suit proceeded in the name of his wife.

The answer set up the defense that defendant had laid its pipes before the complainant bought; that there was then an alley between the lots, and along this they laid their pipes with the consent of the owners of the two lots; that Meyerhardt was the real owner of the land, and he bought with notice.

On the trial, the evidence in regard to notice was conflicting. The jury found for complainant. Defendant moved for a new trial on the following among other grounds:

1. Because the court erred in charging as follows: "If defendant had a verbal license from any former owner of the lots in question to locate and use its gas pipe on or through saidlots, or either of them, and if defendant, in pursuance of such license, expended money or incurred expense *in preparing for the use and enjoyment of such easement, then such license would be irrevocable. But if complainant, D. J. Meyerhardt, afterwards became the owner of said lots by conveyance from or under such former owner, and if said Meyerhardt was a bona fide purchaser of said lots for value, and without notice of defendant\'s said easement, or of the fact that the gas pipes were located on, or through, said lots, then complainant would be protected against defendant\'s claim of easement. Meyerhardt\'s rights in this respect would depend upon the question whether or not he had notice at the time he purchased and took a conveyance to the lots. Notice to him after that time would not affect his rights under a purchase that was complete before notice.

"If a person has notice of any fact which would put a prudent man on inquiry, then the notice of the existence of such fact would charge such person with notice of whatever he would have discovered, if he had prosecuted such inquiry with reasonable diligence."

2. Because the decree does not follow the verdict.

3. Because the verdict was contrary to law and evidence. The motion was overruled, and defendant excepted. For the other facts, see the decision.

Joel Branham; C. RowEll, for plaintiff in error, cited as follows: On verdict, 14 Ga, 121; 55 Ib, 667; 2 Ib, 420; Code, §§ 3224, 3002; 20Ib, 126-134; 5 Ib, 576. On decree, Code, §§ 3559, 4212; 45 Ga, 189; 57 Ib, 269, 466; 46 Ib, 383; 58 lb, 275. On easement, 51 Ga, 578; 46 Ib, 19; 3 Kelly, 83; 12 Ga, 243; 18 N. Y, 48; 45 Ga, 331; 7 Ib, 353; 28 Ib.', 589; 21 N. Y, 505; 47 Ib, 73; 18 N. J. Eq, 260; 34 Mo, 1; Wash, on Eas, §§ 25, 27, 97; 40 E. L. & Eq. R, 411; Ang. on Water-Courses, (6 Ed.) 510, 304, 204, 298, 271; 15 Am. R, 484; 6 Law Reporter, 424; Brown on Stat, of Frauds, (3 Ed.) 31; Wood on Nuisances, 444; 37 N. Y, 637. Notice, 4 Penn. St, 173; 2 Tudor & White\'s L. C, (3 Ed.) 141, 154: 2 Smith\'s L. C, 384; 48 Ga, *585; 53 Ib, 581; 26 Ib,

133; 2 Am. L. C, 770; 27 U. S. Dig, 623. Easement by prescription, Code, § 1951; 47 Ga, 269; 33 lb, 242; 37 Vt, 304; 29 Ib, 43-52; 6 Met, 337. On amendment, 3 Kelly. 310; 28 Ga, 61; 11 Ib, 541; 27 Ib, 54; 1 Eden on Inj, 133 and note; 1 Johns. Ch, 433, 1 Paige, 424; 1 Dan. Ch. Pr, 414.

Forsyth & Reese; Wright & Featherston, for defendant, cited (on necessity for notice,) 10 Conn, 275; 2 Am. L. C, (5 Ed.) 540.

Warner, Chief Justice.

This was a bill filed by the complainant against the defendant, with a prayer for an injunction upon the allegations contained therein, to restrain it from using its gas pipes on certain de-scribed premises, for conveying or passing its gas from its gas works to Broad street, or for any like purpose, forever. On the trial of the cause, the jury, under the charge of the court, found the following verdict: "We, the jury, find for the complainant in that the defendant remove the pipe at its own expense within ninety days, making the walls good, finding no damage." A motion was made for a new trial on the grounds therein stated, which was overruled, and the defendant excepted.

The court entered a decree upon the verdict of the jury, to the effect that the defendant be allowed ninety days within which it may remove from the complainant's premises, if it should desire to do so, its main gas pipe, provided it can remove the same without permanent injury to the buildings thereon, and shall, at its own expense, fully restore and repair all...