The South Carolina R.R. Co.. S In Error v. Steiner

• Court: Supreme Court of Georgia
• Writing for the Court: LOCHRANE, Chief Justice
• Citation: 44 Ga. 546
• Decision Date: 31 July 1871
• Parties: THE SOUTH CAROLINA RAILROAD COMPANY et al.. plaintiffs in error. v. H. L. STEINER et al., defendants in error.

44 Ga. 546

THE SOUTH CAROLINA RAILROAD COMPANY et al.. plaintiffs in error. v. H. L. STEINER et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

The same parties vice versa.

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[44 Ga. 548]

Railroad. Streets. Equity. Eminent domain. Damages. Before Judge Gibson. Richmond Superior Court. June Term, 1871.

This cause was as follows: "The South Carolina Railroad Company, " "The Georgia Railroad and Banking Company, " "The Central Railroad and Banking Company of Georgia, " "The Charlotte, Columbia and Augusta Railroad Company, " *which corporation, by reason of consolidation, has succeeded to all the rights and franchises of the Columbia and Augusta Railroad Company, and the Augusta and Summerville Railroad Company, all corporations chartered by this State, or recognized by the laws thereof, complain against Henry H. Steiner et al., and also against all others who may bring like suits to those hereinafter described.

They claim, and are now, and have been (the three first, actually, and last named by delegating its authority to others,) since the 9th day of November, 1867, and the Charlotte, Columbia and Augusta Railroad, since June 16th, 1869, exercising a right, severally, but under like authority, to transport railroad trains for freight and passengers, drawn by locomotive steam power over a certain railroad track in the city of Augusta, in said county, laid down in Washington street, in said city, from Reynolds street to Telfair street, and thence to the Georgia Railroad passenger depot, and to the Central Railroad freight depot, save that the said Central Railroad and Banking Company say that they have run no trains north of Greene street.

By a contract, under seal, between the City Council of Augusta and the trustees of the Academy of Richmond county, of the one part, and the South Carolina Railroad Company of the other, entered into on the 1oth day of August, 1852, on certain terms therein shown, the said company was authorized to lay down a railroad track in the center of said Washington street, from Reynolds to Watkins street, and use the same for the transportation of freight by horse power; and said track was laid down in a short time thereafter.

On the 31st day of July, 1857, by another contract between the same parties and the Georgia Railroad and Banking Company, the said company was permitted to connect their said track with the track of the said Georgia Railroad, which was accordingly done.

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And on the 19th day of January, 1867, under the ordinances of said city, of that date, *said track was continued on Washington street, southward, to connect with the Central Railroad track, by the Augusta and Summerville Railroad Company.

On the 7th day of November, 1867, an ordinance was adopted by said City Council authorizing the use of steam power on said Washington street, by the said Augusta and Summerville Railroad Company. And on the 13th day of March, 1868, by an ordinance, the said City Council authorized the Augusta and Summerville Railroad Company to contract with the South Carolina Railroad Company for the use of the track of the latter company from Reynolds street to the Georgia Railroad depot, which is the same track first before described; and, in pursuance thereof, on the 16th day of March, 1868, by a deed of lease and covenants entered into between the two said companies, the said track was leased to the said Augusta and Summerville Railroad Company during the terms of their charter, in consideration that said last named company would haul by steam the freight and passenger cars of the said South Carolina Railroad Company, between the depots of said company and the Georgia Railroad company. And on the 2d day of March, 1868, an agreement, in writting, was entered into between the said Augusta and Summerville Railroad Company, and the said Central Railroad and Banking Company, by which the first named company agreed to transport the trains of the other between the depot of the Central Railroad and the other depots in said city. And on the 5th day of July, 1869, an agreement was entered into between said Augusta and Summerville Railroad Company and said Columbia and Augusta Railroad Company, by which the former company agreed to transport the trains of the latter between the several depots.

And on the ——day of ——, 1868. by a verbal contract between the said Augusta and Summerville Railroad Company and the Georgia Railroad and Banking Company, the said former company agreed, for

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a valuable consideration, to transport the trains of the latter company between the *various depots, in like manner as with the other above named companies.

And, inasmuch as the said Augusta and Summerville Railroad

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Company was unprovided with locomotives and engine hands of its own, by an understanding between it and the several other companies, on terms satisfactory to them, the transportation agreed to be drawn by said contracts has been actually performed by the locomotives and engine hands of the respective companies.

And this transportation of trains by authority of said ordinances, done by the consent and authority of the Augusta and Summerville Railroad Company, is the same complained of by the defendants in this bill in their several actions herinafter named; and no other running of trains or engines has been done by them, or either of them, than according to said ordinances and contracts, and the permisson of said City Council of Augusta.

And in addition to the right founded on the foregoing premises, which is common to all the companies, the Charlotte, Columbia and Augusta Railroad Company say that, by ordinance of the City Council of Augusta, adopted April 27th, 1869, the Columbia and Augusta Railroad were expressly authorized to cross the Savannah river and connect with the tracks of the Augusta and Summerville Railroad on Washington street.

The South Carolina Railroad Company and the Charlotte, Columbia and Augusta Railroad Company also say that, on the 1st day of June, 1869, a contract was entered into between them and the City Council and the said trustees of Richmond Academy by which, for a valuable consideration, the said City Council conveyed to said railroad companies, in perpetuity, severally and respectively, the right to use said track on Washington street, with steam or other power.

And all the said ordinances and contracts between said City Council and said Augusta and Summerville Railroad Company, have been confirmed by the Act of the Legislature, approved October 26th, 1870.

*Washington street is sixty-five feet in width, and said railroad track is five feet in width, located in the centre of the street, and on the same level as the street, and offers no obstruction to the crossing of the street, at any point, beyond a slight jolting of vehicles; whereas, before said track was laid, there was an open ditch or drain, from time immemorial, down the center of said street, which effectually prevented any crossing thereof save at the crossings of other streets, which drain has been covered by the track aforesaid, at the expense of complainants.

The fee of the soil of said Washington street is in the State of Georgia, subject only to its use as a public highway by the people of this State; said street was laid out as a street and public highway when Georgia was a British colony, on land belonging to the Proprietory Trustees, and afterwards to the Crown, and the title to the same has never passed out of the sovereign to any private person; and they pray that any private person who asserts a right as of fee in the land covered by said street may be held to the strict proof thereof.

The foregoing premises vest in them the legal right to run their trains by steam power on said track on Washington street without responsibility for damages to any private individual for so doing.

Yet they are now, arid are likely to be hereafter, greatly harassed and put to costs and expense by suits for damages by individuals claiming to be injured in depreciation of real estate alleged to be caused by the exercise of their said rights.

And already actions for damages to real estate on Washington street, caused by the running of trains as aforesaid, have been commenced against each of them severally—except the Augusta and Summerville Railroad Company—by the said defendants in this bill, being, in all, twenty-eight suits, of which all but the action of Mrs. Mary M. Clanton were brought to January Term, 1871, of this Court; and the suit of the said Mrs. Clanton was brought to June

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Term, 1871.

*And all said actions are still pending, and are for damages upon the same grounds. Such actions being merely for damages for a limited period, cannot finally settle the controversies between the parties, but they are liable to continual and repeated litigation, which is contrary to the policy of the law. And moreover, in such actions, if damages are held to be recoverable, it would be impossible for a jury to assess what any one company should pay without considering the liability of the other companies, on which each one ought to be heard. And for other reasons, complete justice cannot be had under the mode of proceeding of the common law; and, therefore, complainants bring this their bill, in the nature of a bill of peace, to the end that all these matters may be heard and determined at once, and protection be afforded against a multiplicity of suits.

They pray that said defendants may, without oath, answer this bill, and that they be restrained, by the writ of injunction, from fourther prosecuting their said actions at law, until the further order of the Court, and that a decree may be had upon the hearing of this bill, establishing and confirming to each of complainants the right to use said railroad track for the carrying of freight and passengers by steam power, or other power, and that said...