152 Ga. 432 | Ga. | 1921
The Atlanta, Birmingham and Atlantic Railway Company filed its petition against the County of Coffee, to enjoin the county from constructing and putting in use a public highway over and along a certain strip o’f land or right of way in the towp of Nicho! Is, Coffee County, title to which is claimed by the plaintiff. It is alleged, that the plaintiff is the absolute owner of the said strip of land or right of way; that it is in the possession thereof; that a part of the land was then being used by the plaintiff for certain of its industrial and spur-tracks, and that it contemplated an extension of its track over the remaining portion of said right of way in said land. It was further alleged that the defendant had, without lawful authority and over the objection of the plaintiff, entered upon said right of way and was then proceeding to build and construct a highway longitudinally along and over said strip of land; and that such use of the .right of way by the county was inconsistent with its use and enjoyment by the plaintiff as a railroad company. In its answer to the petition the county denied that plaintiff was the owner of the absolute fee-simple title to the strip of land in controversy, and averred that plaintiff was not in possession of said strip. It further averred, that in the year 1906 'the plaintiff ceased to use the strip of land for railroad purposes; that in the year 1908 the plaintiff removed its track from the land and entirely abandoned the same; that since the year 1908 the plaintiff had ’ exercised no claim of ownership to the land; and that by reason of such an abandonment title to the strip of land reverted to the adjoining landowners. In its answer the defendant contended also that the highway had been practically completed and was in actual use; and that the plaintiff by reason of its laches was nbt entitled to the injunction
Where, under the power of eminent domain, condemnation proceedings are had by a railroad company, the company, upon payment of the award, becomes vested with such interest in the property taken as may be necessary to enable it to exercise its franchise. By express statutory provision, “ whenever the corporation or person shall cease using the property taken for the purpose of conducting their business, said property shall revert to the person from whom taken, his heirs or assigns.” Civil' Code (1910), § 5233. By an act of the General Assembly (Acts 1914, p. 61) this section of the code was amended by providing that “whenever any municipality in this State condemns land for protection against floods and freshets, said municipality may require a fee-simple title to the property condemned on payment of the condemnation-money.” A railroad corporation may, by contract, procure land, easements, rights of way, or other interests or property useful, needful and necessary for public purposes, and authorized by law to be taken or damaged. Civil Code (1910), § 5207. Where land is given or granted by an owner to a railroad corporation, the rights of the parties with respect to a reversion on abandonment will be determined by the terms of the conveyance. City of Atlanta v. Jones, 135 Ga. 376 (69 S. E. 571). In the instant case the plaintiff in error claims under a deed from Mark TTall to the Southern Pine Companjf of Georgia, dated December 30, 1899, conveying the following property: “One hundred feet in width of right of way, that is to say, fifty (50) feet on each side of the center of the road-bed of the present Offerman & Western Bailroad, as now located, through that portion of lot of land number five hundred and fourteen (514) in the sixth district of Coffee County, Georgia, now owned by said party of the first part; said one hundred feet in width of right of way being more fully described by a sketch or plat of same hereto attached and made a part of this deed, and referred to for further identification of the railroad right of way hereby conveyed. . . To have and to hold the said bargained and described right of way unto the said party of the second part, its successors and assigns, forever in fee simple,” with covenant of general warranty. It is conceded by the defendant in error that if the deed from Hall to the Southern
In this view of the matter it is unnecessary to hold that the “ words f right of Vay ’ in the grant describe the tenure, not the land granted,” as was held in Atlantic & Pacific Railroad v. Lesueur, 2 Ariz. 428 (19 Pac. 157, 1 L. R. A. 244). The words in the tenendum clause under consideration, “forever, in fee simple,” do not demand the construction contended for by plaintiff in error. It is to be noted that even in this clause of the deed the property conveyed is described as “right of way.” The words “ fee simple ” are descriptive of the extent of duration of the enjoyment of the easement. See Ga. & Fla. Ry. Co. v. Swain, 145
Was the judge authorized to find that the easement had been . lost by abandonment or by nonuser? In Mayor &c. of Savannah v. Barnes, supra, it was held that “Where an easement has been
Judgment affirmed.