Whelchel v. State ex rel. Wiley

• Decision Date: 09 March 1886
• Citation: 76 Ga. 644
• Parties: WHELCHEL et al. v. THE STATE OF GEORGIA, ex. rel. WIL et al.
• Court: Georgia Supreme Court

76 Ga. 644

WHELCHEL et al. v. THE STATE OF GEORGIA, ex. rel. WIL et al.

Supreme Court of Georgia.

March 9, 1886

March Term, 1886.

[This case was argued at the last term, and the decision reserved.]

1. A petition for an information in the nature of a quo warranto to call upon the defendants to show by what right they exercised the franchise of using a public bridge as their private property and erecting gates and charging tolls for crossing, alleged that the court of ordinary of the county established a public road running from a church to this bridge, which was built across a river, and on the same day established another public road from the opposite side of the bridge to the county site, that these roads were opened and worked and traveled since as public roads; that the relators, with other citizens, by private subscription built the bridge, and the public used it as a public bridge from March to July, when the respondents put up gates and exacted tolls; and that they had no chartered rights thereto, but were usurpers of the rights, privileges and franchises of owners and proprietors of public bridges:

Held, that the petition made a proper case for an information in the nature of a quo warranto and was not demurrable.

2. The information is not confined to strictly following the petition of the relators, but may amplify and enlarge the facts and the prayer not going out of the substantial subject-matter complained of and the judgment granting the prayer and directing the information filed.

3. The answer to such an information denied that the respondents claimed to be a body corporate or to have chartered rights or that they are usurping such rights. It admitted that they erected the bridge and had placed gates across it, and were exacting tools from those who crossed; it claimed the bridge as their private property, and alleged that the public road only extended to the bridge on either side; that the land on both sides was either owned by them or by those who had granted the use of it to them; that they partly paid for and partly built the bridge; that certain persons raised small sums by subscription, and relators, with one of the respondents, contracted with a builder who built the bridge that the land-owners on both sides did not dedicate the bridge to the public, but were willing for the public to build the bridge and pay for it; that it was not paid for and the builder retained possession with their consent; that he filed a mechanic's lien and transferred it to certain persons; that they did not dedicate the bridge to the public, but left it open for one year in order to give citizens an opportunity to pay for it; that they then sued relators, who represented that they were authorized to act for all who had contributed, and obtained judgment and sold the bridge, and respondents bought it:

Held, that on the pleadings, no evidence being introduced, a judgment ousting respondents of the right or privilege of charging tolls was right.

( a. ) The act of 1850 (Cobb's Dig., p. 958; Code §684) merely grants the privilege to an owner of land on both sides of a stream to pass from one side to the other by a private bridge or ferry, and as incident thereto to pass others upon the payment of toll. It did not contemplate a case where a public read crossed a bridge, and where a few men obtained possession in the manner set out in this case and proceeded to charge toll without authority granted to them from some proper source.

Roads and Bridges. Pleadings. Franchises. Quo Warranto. Before Judge ESTES. Hall Superior Court. August Term, 1885.

Reported in the decision.

H. H. PERRY, by brief, for plaintiffs in error.

W. S. ERWIN, solicitor general; G. H. PRIOR; M. L. SMITH; W. S. PICKRELL, by brief, contra.

JACKSON Chief Justice.

Application was made by the relators to file an information in the nature of a quo warranto against the respondents, calling upon them to show by what right they exercised the franchise of using a public bridge as their private property, and erecting gates and charging toll for crossing the same. The application was granted and the information was filed by the solicitor general. Both the application and information were demurred to, and the demurrers overruled, and respondents excepted. The information was then answered on the merits; no issue was made on the answer, but on the facts as made by the pleadings, the answer included, the judge decided in favor of the relators and granted the writ of ouster, and respondents again excepted.

Thus three points are made: first, is the application demurrable? Secondly, is the information demurrable? And thirdly, is the judgment of ouster right?

1. Is the application demurrable? Or, in other words, will information in the nature of a quo warranto lie in the case made by the facts set out in the petition?

The facts therein exhibited are that on the 14th of March, 1879, the court of ordinary established a public road running from a church to this bridge across the Chattahoochee river, and on the same day, that court established another public road from the opposite side of the bridge to the city of Gainesville; that these roads were opened and worked, and traveled ever since as public roads; that the relators with other citizens by private subscription built the bridge and the public used it as a public bridge from March, 1879, to July, 1879; that in July, 1879, respondents put up gates thereto and exacted tolls from the public; that they had no chartered rights thereto, but were usurpers of the rights, privileges and franchises of owners and proprietors of public bridges under the laws of the state; and therefore relators pray for the rule nisi against the respondents.

So that the case made is that a bridge was built over the Chattahoochee river by private subscription, and on its being built, or simultaneously with the erection, a public road from a certain church to Gainesville was authorized and established by the ordinary, and opened and used by the public in common with this bridge from its erection in March 1879, to July, 1879, when this alleged usurpation took place; the gates were erected to prevent the public from passing over the bridge freely and without toll, and they were so...