Tift v. Golden Hardware Co.
| Decision Date | 11 January 1949 |
| Docket Number | 16454. |
| Citation | 51 S.E.2d 435,204 Ga. 654 |
| Parties | TIFT et al. v. GOLDEN HARDWARE CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The owner and operator of a spur track over which adjoining owners receive rail service may, in his discretion, dismantle and abandon such track where under no contractual or statutory obligation to maintain the same.
2. In order to acquire a statutory right of private way over another's land, the private way shall not exceed fifteen feet in width and the prescriber must have kept the private way open and in repair.
3.
4. There are certain essential elements to a valid dedication of land to a public use: (1) an intention on the part of the owner to dedicate the property to a public use (2) an acceptance thereof by the public; and (3) where implied dedication is relied upon, it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift.
5. Recitals in a deed bind only parties and privies, and are not evidence for or against any one not claiming under the deed.
6. While a parol license for the use of land becomes irrevocable and an easement running with the land, where the licensee makes investments and incurs expenses in the execution of the license itself, the mere fact that a licensee erects improvements upon his own land and thereby incurs expense in the expectation of enjoying the license, would not be such an expenditure as would make the licensee a purchaser for value and the license irrevocable.
7. The trial court erred in restraining and enjoining the defendant from going upon or using any portion of his own property, and in authorizing he plaintiff to construct and use a spur track on the property of the defendant.
Golden Hardware Company brought its petition on June 7, 1948, in the Superior Court of Tift County, against T. W. Tift, and W. P Brown trading as W. P. Brown and Son. The petition alleged substantially: that the plaintiff corporation has a warehouse for the storage of commodities such as are usually dealt in by hardware companies, located on an alley between Love Avenue and Central Avenue, in the City of Tifton, and just west [east] of the old Central Grocery Company building which is served by a service or switch track of Georgia Southern and Florida Railway Company, which track extends from the main line on the west in an easterly direction to the south side of Central Grocery Company building; that there is an alley 19.8 feet in width between the warehouse of the defendant Tift and that of petitioner, which has been dedicated to public uses, burdened with the said service track; and that the defendant Tift, acting through his agent and employee Brown, is in the act of removing said track from the said alley and from the building of the plaintiff, so that no car can be placed there for unloading.
By an amendment to the petition, allowed June 17, 1948, it is alleged: that the spur track of Georgia Southern and Florida Railway Company is the only means of rail ingress and egress to and from the plaintiff's property; that such means of ingress and egress have been enjoyed and used by the plaintiff and its predecessors in title for more than 20 years; that such use has been continuous, uninterrupted, open, notorious, and adverse to the claims of any person to interfere therewith during the entire period of more than 20 years; and that the plaintiff's right to the use and enjoyment of ingress and egress to and from this property by rail results not only from prescription, but also from the fact that the properties over which such service track extends were dedicated to such use by the predecessor in title of T. W. Tift, more than 50 years ago. The petition further alleges that the plaintiff acquired the property on which its warehouse is constructed from H. H. Tift, who was also the predecessor in title to T. W. Tift, some 32 years prior to the filing of the petition, with knowledge on the part of H. H. Tift as to the use and purpose to which such property would be devoted, and with the full understanding that such property was served and would continue to be served by the described spur track.
By a further amendment to the petition, allowed July 30, 1948, it is alleged: that during all of the 32 years the plaintiff has enjoyed the right of rail service at its warehouse; it has paid for switching charges, formerly to the predecessor in title Tift, to wit, The Tifton Terminal Company; that during all of that period, up until the attempted removal of the track, no notice was given to the plaintiff that the track would be removed, nor was the plaintiff ever requested to purchase or pay any sum for such service other than the switching charge; that the plaintiff is now able, ready, and willing to pay a reasonable sum for the value of a sufficient amount of such a track for the easement thereon that would enable it to continue to obtain rail service at such warehouse, and will make such payment upon the direction of the court at any time; that the defendant has previously sold such easement to trackage privileges along such spur track to certain named persons; that the plaintiff is perfectly agreeable to making payment in a like sum on a pro rate footage basis; that a part of the track in question, the road bed and the ties, are still intact upon the right of way of such spur track which served plaintiff and now remain there; that, in order to give access to all of the parties along the track, including H. V. Kell Company, the same crosses a street of the City of Tifton, to wit, Love Avenue (Central Avenue), and thereby, has become dedicated to public purposes of such users; that, in order to receive the service heretofore rendered over and by such track, it will be necessary that the spur track extend 6 feet east of the plaintiff's warehouse, which will be ample for such purpose, and will leave to the defendant 10 1/2 feet, which will be sufficient alley for the purposes of egress and ingress to the defendant's property mentioned in his answer.
By still another amendment, allowed August 25, 1948, the petition alleges: that, just prior to June 14, 1916, at which time the plaintiff acquired from the late H. H. Tift a portion of the lot on which the present warehouse is situated, the plaintiff had a spur track at the rear of its main hardware building just across the alley from the defendant Tift's building; that it had rail service from such track from Captain H. H. Tift, doing business as Tifton Terminal Company; and that, at the request of H. H. Tift, the plaintiff agreed for the removal of such spur track in the rear of its main hardware building, and acquired the site of its new warehouse from Central Grocery Company and H. H. Tift for service by rail at the new location. It is further alleged: that the defendant contends that he offered to sell such spur track as was located at the south of the warehouse building to the plaintiff for $500, which offer, the plaintiff denies, but alleges that, if the defendant Tift did make such offer, the plaintiff accepts the same and tenders to the court $500 in consideration of at least 35 feet of such track and land upon which it was originally located not less than 34 feet east from the abutting line on the west of the plaintiff's warehouse building, which would serve the plaintiff by rail at its warehouse.
The original petition prayed: (1) that the defendants be restrained and enjoined from the removal of said service track until further order of the court; (2) that said injunctive relief be made permanent; (3) that the plaintiff have judgment for such damage against said defendants as may be done; and (4) for such other and further relief as to the Court seems meet and proper. By its first amendment, the plaintiff prayed further that the defendants and each of them be enjoined and restrained from interfering with the plaintiff's means by rail of ingress and egress to and from its property, and that the defendants be restrained and enjoined from entering upon the property over which the said service track extends to the property of the plaintiff.
To the petition as originally presented, the defendant, T. W. Tift filed his answer, in which he denied all of the material allegations of the petition, and alleged: that the spur track referred to in the petition is a privately owned track; and that this defendant owns fee-simple title thereto at all points along the same east of where the track leaves the property of H. V. Kell Company; that neither Georgia Southern and Florida Railway Company nor the plaintiff has any right, title, or interest in or to the track, nor has either of them ever owned any right, title, or interest therein; that the plaintiff has no contractual rights requiring this defendant to maintain any switch track or service track for the benefit of the plaintiff's property, nor does it have any right to require the same to be maintained by reason of any statute or otherwise; that this defendant is not engaged in the business of a common carrier or other utility, but is a private individual, owning a private spur track on lands to which he holds fee-simple title; that any use the plaintiff may have made of the defendant's spur track heretofore has been purely a matter of grace and permission without payment of any consideration and without any duty or obligation on the part of this defendant to supply any such service; that this defendant...
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