The Union Branch Rail Rd. Co v. The East Tenn. & Ga. R. R. Co.

• Decision Date: 31 October 1853
• Docket Number: No. 48.,48.
• Citation: The Union Branch Rail Rd. Co v. The East Tenn. & Ga. R. R. Co., 14 Ga. 327 (Ga. 1853)
• Court: Georgia Supreme Court
• Parties: The Union Branch Rail Road Co., plaintiffs in error. vs. The East Tennessee & Georgia R. R. Company, defendants in error.

14 Ga. 327

The Union Branch Rail Road Co., plaintiffs in error. vs. The East Tennessee & Georgia R. R. Company, defendants in error.

No. 48.

Supreme Court of the State of Georgia

OCTOBER TERM, 1853.

In Equity from Murray Superior Court. Decided by Judge John H. Lumpkin, April Term, 1853.

The following is the Bill of Exceptions which sets forth the facts in this case. The assignment of error as to the decision of the Court in sustaining the plea, and dismissing the bill, only was relied on before this Court.

Georgia, Whitfield County.

Be it remembered, that on the fifteenth day of April, in the year of our Lord, 1853, during the regular Term of the Superior Court of said County, His Honor John H. Lumpkin, one of the Judges of the Superior Court of said State presiding, the cause of the Union Branch Rail Road, complainant, vs. the East Tennesse & Georgia Rail Road Company, Thomas H. Calloway, William Grant, Simeon D. Reynolds and Jonathan N. Cate, defendants, then and there pending on the equity side of said Court, being a bill for discovery, relief and injunction, came on to be heard; on a motion for an injunction, the appointment of a receiver and a plea in bar to the complainant\'s bill of complaint; in which bill of complaint, it is amongst other things, alleged that the Legislature of Georgia, at its session, in the year of our Lord, 1840, incorporated the complainant by the name and style of the Cross Plains and Red Clay Branch Rail Road Company of Georgia, for the purpose of completing fifteen miles of Rail Road within the limits of Georgia, commencing at a place then known by the name of, and called Cross Plains, but now known as the Town, or the City of Dalton, and extending thence to and terminating on the line of the State of Tennessee, at a place called Red Clay. The said Bill of complaint further alleged the rights of the said complainant under the Charter, that it was a contract ir-revokable and unalterable, save at the option of both parties, except so far as the power of modification or revocation was reserved in the act of incorporation; and that in the act of incorporation it was enacted and stipulated that no other Rail Road should thereafter be built within twenty miles of the route, the complainant might select, complainant was allowed ten years to complete the said Road from the time of its incorporation; and it was required to commence active operations on said Road in good faith in twelve months: and if it did not, its charter was to be forfeited to all intents and purposes; which it avers it had done, and which it found necessary, for reasons which are stated in the record (to which Plaintiff in error begs leave to refer if necessary, as a part of this bill of exceptions) temporarily to suspend its operations; that the General Assembly of Georgia, by an act approved the 5th day of December, 1849, changed the name of complainant, and while the said last act continued, all the privileges and liabilities of the said complainant under the original charter, it allowed it three yearsfrom the passage of the last named act to complete the said Road, and repealed the 10th section of the original act of in corporation which reserved the right to any (then) future Legislature, to repeal said act of incorporation, and declared forfeiture of the charter, if complainant should sell its charter to any other company; or if it should not commence, in good faith, active operations on said road within twelve months after the passage of said act. The said bill proceeds to set forth its operations since the passing of the last named act, and amongst other things, alleges that complainant would have completed said road, within the time given it, had it not been prevented by the usurpation of the Rail Road route it had selected, and the appropriation thereof to its own use, by the East Tennessee & Georgia Rail Road Company. The Bill alleges that the last named company was first incorporated by the Legislature of Tennessee in 1835, for the purpose of building a Rail Road from Knoxville, in East Tennessee, to a point on the Southern boundary of Tennessee; that said company was to commence the said Rail Road, or contract for the construction of some part of it, on or before the 1st day of January, in the year 1838, and complete the same on or before the 1st day of January, 1844; and on failure to do so, the interest of said Company, in said Rail Road, was to be forfeited and cease. The said bill alleges further, amongst other things, that the time for completing said Road was extended by the Legislature of Tennessee, from time to time, until it was finally fixed at the year 1860; that in 1849 the Legislature of Tennessee changed the name of the complainant from its original name, "The Hi-wassee Rail Road Company, " to the name of the "East Tennessee & Georgia Rail Road Company"; giving it all the powers and privileges it possessed under its former name; that the said East Tennessee & Georgia Rail Road Company, afterwards, under a pretended Legislative grant from the State of Georgia, entered upon, and seized the Rail Road route selected by complainant, and appropriated the same to its own use, without the consent of complainant, contrary to law, and in defiance of the superior claim and vested rights of complainant, and maintained forcible possession against complainant. The bill further alleges, the giving of notice by the complainant to the defendants, not to proceed with their work on said Road, and that complainant claimed it as its own property. It further alleges that complainant proposed to pay the defendants for all outlays on said Road, and pay all losses, &c, if it would deliver over the same to complainant, which the defendants refused to do; that at an early day in the progress of said work by the East Tennessee & Georgia Rail Road Company, the complainant undertook and commenced the construction of said Road, on its own selected and surveyed route, and was forcibly prevented from doing so by the defendants, their agents, servants and hirelings, for the reasons specified in said bill of complaint; and the East Tennessee & Georgia Rail Road company seized and appropriated to the use of said company, the said Rail Road route without compensation, and against the will of complainant, its lands and right of way. The complainant insists in its said bill of complaint in substance, that inasmuch as the defendants constructed said Road, made improvements, and erected fixtures thereon, with a full notice of complainant\'s right, the title thereto was vested in complainant.

To the allegations of said bill, the defendants pleaded in bar the Act of the General Assembly of the State of Tennessee, passed in 1836, incorporating the Hiwassee Rail Road Company, setting forth in said plea a portion of the powers and privileges conferred on the Hiwassee Rail Road Company by said act of incorporation. The said defendants further pleaded the act of the General Assembly of the State of Tennessee, passed on the 24th day of January, 1838, entitled an act to authorize the State of Georgia to extend her Western & Atlantic Rail Road from the Georgia line, to some point on the Eastern margin of Tennessee river; by which act, it was amongst other things enacted, that the State of Georgia shall be allowed to make every necessary reconnoissance and survey, for the purpose of ascertaining the most eligible route for the extension of her Western & Atlantic Rail Road from the Georgia line to the Eastern margin of the Tennessee river, and further enact-ed that as soon as said route and point shall be ascertained, the State of Georgia shall be allowed the right of way for the extension and construction of her said Rail Road from the Georgia line to the Tennessee river, and that she shall be entitled to all privileges, rights and immunities (except the subscription on the part of Tennessee) and be subject to the same restrictions as far as they are applicable, as are granted, made and prescribed for the benefit, government and direction of the Hi-wassee Rail Road Company; and it was further enacted that the foregoing rights and privileges are conferred on the State of Georgia, on condition that whenever application is made, she will grant and concede similar ones, and to as great extent to the State of Tennessee, or her incorporated companies. And the said defendants further pleaded the Act of the General Assembly of the State of Georgia, passed on the 23d day of December, in the year 1847, to authorize the Hiwassee Rail Road Company of the State of Tennessee to extend their Rail Road from the Tennessee line to some point on the Western & Atlantic Rail Road of the State of Georgia, by which it was, amongst other things, enacted that the Hiwassee Rail Road Company of the State of Tennessee shall be allowed the privilege of making every necessary reconnoissance and survey for the purpose of ascertaining the most eligible route for the extension of the Hiwassee Rail Road from the Tennessee line to some point on the Western & Atlantic Rail Road above Dalton.

And it was by the same statute further enacted, that as soon as said route shall be ascertained, the said Hiwassee Rail Road Company shall be allowed the right of way over said route, to said point on the Western & Atlantic Rail Road, and shall be entitled to all the rights, privileges, and immunities, and be subject to the same restrictions as granted to the Western & Atlantic Rail Road of the State of Georgia, in the State of Tennessee, by an act of the State of Tennessee, passed on the 24th of January, 1838, entitled an act to authorize the State of Georgia to extend her Western & Atlantic Rail Road from the Georgia line to some point on the Eastern margin of the Tennessee river. The defendants further plead in substance.that the Legislature of the State of Tennessee passed on the 4th of February, 1848, an act changing the name of the Hiwassee Rail Road Company to that of the East...