Town of Poulan v. Atlantic Coast Line R. Co.

• Decision Date: 02 August 1905
• Parties: TOWN OF POULAN et al. v. ATLANTIC COAST LINE R. CO.
• Court: Georgia Supreme Court

51 S.E. 657

123 Ga. 605

TOWN OF POULAN et al. v. ATLANTIC COAST LINE R. CO.

Supreme Court of Georgia

August 2, 1905

Syllabus by the Court.

The affidavits sent up with the record and purporting to have been used as evidence on the hearing of the application for injunction cannot be considered, not being identified in any way by the judge as having been so used.

Where a railroad company acquired the fee in land which was afterwards embraced within the limits of an incorporated town, and constructed a railroad over such land, the municipal authorities could not, without the payment of compensation to the company, construct a street crossing and extend a street over its right of way and track; and where an attempt was made to do so an injunction was properly granted.

Power delegated by the state to a municipal corporation to "condemn property for the purpose of laying out new streets and alleys, and for widening, straightening, or grading, or in any way changing the street lines and sidewalks of said town," is sufficiently broad to authorize the condemnation of so much of the right of way of a railroad company as may be necessary for the construction of a street crossing and the extension of a street over such right of way.

The act approved August 4, 1904, amending the charter of the town of Poulan, and conferring upon it power to condemn private property for the laying out of streets, is not subject to the constitutional objections that it contains matter in the body of the act different from what is expressed in the title, and amends a law by mere reference to its title. Nor is such act unconstitutional because it fails to provide a method for assessing the damages to be paid the owner of property condemned. The general law furnishes the method for making such assessment.

The decision of a municipal corporation, to which the general power has been delegated to lay out streets, that a street at a given point is necessary for the welfare of the inhabitants of the municipality, will not be interfered with by the courts, unless there has been a palpable abuse of the discretion vested in the municipal authorities, or manifest injustice and oppression is shown.

The facts alleged in the petition do not show that the use of a part of the right of way of the railroad company for the street and crossing will be so inconsistent with the use to which the company has already devoted it as to authorize a court of equity to enjoin the municipal authorities from instituting condemnation proceedings.

Error from Superior Court, Worth County; W. N. Spence, Judge.

Action by the Atlantic Coast Line Railroad Company against the town of Poulan and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Act Aug. 4, 1904 (Laws 1904, p. 555), amending the charter of the town of Poulan, and conferring power to condemn property for streets, is not unconstitutional as containing matter in the body of the act different from that expressed in its title and covers any matter germane to the general subject of incorporating towns.

The Atlantic Coast Line Railroad Company filed a petition for an injunction against the town of Poulan and its municipal officers. The material facts as set out in the petition are substantially as follows: For more than 20 years the plaintiff and its predecessors in title have been in the complete, exclusive, and adverse possession of a line of railroad through territory now within the limits of the town of Poulan. In 1897 the Brunswick & Western Railroad Company in order to confirm its title, obtained a deed conveying to it a right of way through the limits of the present town of Poulan, together with other adjacent lands, covering a strip measuring 100 feet from the center of the track of the railroad company each way. The plaintiff obtained title to this strip from the grantee of the railroad company above named, and holds the same in fee. In March, 1905, the mayor and council of Poulan undertook, without the knowledge or consent of the plaintiff, and without any notice to it, and without proceeding to condemn, to put a crossing over the track of the plaintiff, bridging a ditch on the side of the track, at the foot of where Hunton street would cross the railroad, and extending that street through the plaintiff's land to a named creek. When the work of building the crossing was partly finished, agents of the plaintiff were proceeding to restore the property to its original condition, when they were arrested by the municipal authorities, and confined in the city prison, and, after a trial, fines were imposed upon them. Several years before the town was incorporated the plaintiff selected a convenient site for a depot and erected a depot thereon upon its right of way, and has since put in a side track on the opposite side of the depot from the main line. At the time the depot and side track were constructed there were two street crossings over the railroad within two blocks of each other, both of which were convenient and accessible to all parts of the town. Since that time Hunton street has been opened down to and against the railroad on the north side, and this street is the main thoroughfare to and from the depot and yards. This is the point where most of the necessary shifting of cars takes place to and from the side track. The depot is only about 50 feet away from the proposed crossing, and it would be very inconvenient and dangerous to allow such crossing to be constructed. The uses to which the town authorities design to put this crossing are inconsistent with the use to which the plaintiff has already appropriated the land. The defendants have given notice that they will proceed to condemn the property of the plaintiff for the aforesaid crossing, claiming the power to do so under an act amending the charter of the town, approved August 4, 1904, (Laws 1904, p. 555). This act is unconstitutional, because there is nothing in the title to indicate what is contained in the body of the act. It refers to the act sought to be amended only by name. There is no description of the law sought to be amended, either in the title or the body of the amending act; and the act does not provide a method for ascertaining the amount of damages resulting from the condemnation. The plaintiff has, at great expense, arranged to use and has appropriated the land at the point where the crossing is to be constructed for depot grounds, not only with a view to present necessities, but with a view to increased business and additional tracks in the future, and the use of the crossing by the town involves the practical extinguishment of the former use to which the plaintiff has appropriated the land at that point. The plaintiff has no complete and adequate remedy at law. The prayers were that the defendants be enjoined from in any manner interfering with the plaintiff in its complete enjoyment and use of the land, right of way, track, and other property at the proposed street crossing as heretofore, or from interfering with the plaintiff in removing whatever part of the crossing has already been put down, and in restoring the track and grounds to their original condition before the acts of the defendants herein complained of; that the defendants be also enjoined from instituting condemnation proceedings under the act of 1904; and for general relief. A restraining order was granted, and at the hearing the defendants showed, for cause against the granting of the injunction, a demurrer, an answer and affidavits of various persons. The court granted an order that "the injunction do issue as prayed until the final hearing of this cause, enjoining and restraining the said defendants from in any manner seeking to open Hunton street south of the track of the complainant, upon all of the grounds alleged and relief prayed for in plaintiff's petition." The defendants excepted.

Payton & Hay, for plaintiffs in error.

Perry & Tipton and Kay, Bennet & Conyers, for defendant in error.

COBB J.

1. The bill of exceptions specified, as necessary to an understanding of the case to be transmitted with the record, the affidavits of various persons, and the record contains numerous affidavits which it is claimed were used at the hearing. There is, however, nothing to identify these affidavits as having been so used. None of them are incorporated in the bill of exceptions, or identified by the judge. Under such circumstances it is settled that this court cannot consider the affidavits in determining the questions raised in the case. Sayer v. Brown, 119 Ga. 539 (1), 46 S.E. 649. As the judge granted the injunction prayed for, in passing upon the question whether he erred in so doing the allegations of the petition must be taken as true.

2. The order granting the injunction was as broad as were the prayers of the petition. The first question to be determined is whether or not there is error in so much of the order...