105 Ga. 534 | Ga. | 1898
As will be seen, the question which arises in this case is, whether a landowner who has expressly contracted with a railroad company to sell a right of way for the maintenance and operation of a railroad over his land, and who has consented to the placing on such land of a line of railway-track, etc., at great expense upon the part of the vendee, and who, reserving title in himself, made to the railroad company his bond conditioned to convey such right of way upon the payment thereafter of a stipulated sum, is entitled to maintain an action of ejectment against a railroad company which, being the successor of the original vendee, is in the possession of such right of way, on which it is maintaining a line of railroad and operating its cars in the transportation of passengers and freight. As will be seen by the petition, the plaintiff alleges that in Eebruary, 1889, he contracted with the Marietta & North Georgia Railroad Company, which was the predecessor of the defendant in error, to sell it a right of way across certain lots of land owned by him in Eannin county; that the purchase of said right of way contemplated the payment of a certain sum of money, of which he
It can not be understood from this state of facts that any question arises as to the right of the railroad company to take the land of another for its use without the payment of just compensation. The land, under the circumstances set out in the petition, was not taken in the exercise of the right of eminent domain, but under contract of purchase, and possession surren- • dered for the particular purpose of constructing a railroad upon it. Had it been the pleasure of the landowner so to do, he could have forbidden the entry of the company on his land and the appropriation of any part of it to1 its use, except on payment of its value; and ample power was afforded him by law to enforce this right. While he had undoubtedly the right to do so, he was not .compelled to exercise it, and he had the equal right by contract with the company to permit it to occupy his land. The question as to what would be the remedy of a landowner against a railroad company which entered on his land and appropriated .a portion of it to its use without his consent, is not involved in the present case; but the sole question is, having agreed to the sale of the land to a railroad company for the express purpose of .allowing the company to place its tracks thereon, and to use a .right of way over it for the transportation of its cars, and having under the contract agreed that the company could do so, can he thereafter maintain an action of ejectment to oust the company from the possession of the right of way so occupied, because a portion of the purchase-money has not been paid, and because title to such land still remains in him ?
The plaintiff in error contends that an action of ejectment
In the argument here counsel for defendant in error insisted that if this remedy did not exist in this case, it was because the defendant was a railroad company, and-hq questioned whether a railroad company had any rights superior to those of an individual! Counsel was right. If this action can not be maintained in the present case, it is because the defendant is a railroad company. Not that a railroad company has or ought to have any more rights than an individual; not because the claims of a railroad company should be entitled to any more consideration than those which any natural person possesses; but it is because a company which has constructed and is operating a rail■road between two distant termini, running through several counties, and possibly States, must, for the sake of the public interest involved, be treated as an entirety, and that “one can not stand by and suffer another to expend money to large amounts on his land, as part of a great system of improvement, and then stop by injunction the entire system until he is paid. He must move in limine. He must defend at the threshold. . . Laches is a lock to the door of equity, which few keys, if any, are strong enough to open.” Griffin v. Augusta & Knoxville Railroad, 70 Ga. 167. “A railroad with its depots, bridges, and other appurtenances, is no less an entirety than a dwelling-house with its kitchen, its chimneys and its door-steps; and yet no one has ever supposed that a mechanic’s lien could be enforced against the door-steps or chimneys of a dwelling-house, or that they could be sold and removed, to the utter destruction of the whole property.” Farmers’ Loan Co. v. Candler, 87 Ga. 242, quoting from 7 A. & E. R. R. Cases, 395. In a very strong and able opinion delivered by Mr. Justice Cobb in the case of Charleston & Western Carolina Ry. Co. v. Hughes, ante, 1, and from which we freely quote, it is aptly said: “ Controversies in reference to the possession of land, where the rights of individuals only are involved, are purely matters of private concern. Controversies in which a corporation charged with
For all practical purposes the ruling in the case to which we have just referred controls the question made in the present ■case. It must be borne in mind that we are considering only the question of the right of the landowner to have the remedy •of ejectment. Of course the owner of land who has not been paid for the same is entitled, as a matter of right, unless his •claim has been defeated by some act or omission on his part, to be paid for the use of such land, whether such use was authorized or unauthorized by him, and “the landowner is entitled to •compensation for his property, and this must be ascertained and paid to him’ before the corporation is vested with the complete right to hold and enjoy his property as its own.”' Mr. Justice •Oobb, in the opinion referred to, cites a number of authorities ■directly in point, to sustain the proposition laid down in that-part of his opinion' from which we have .quoted, and it would really seem to be a work of supererogation to add further citations. We will, however, briefly refer to some other adjudicated cases clearly establishing the proposition that, under circumstances such as are involved in the present case, the landowner, while being entitled to the same rights to collect the purchase-price of his land as exist in all other cases, is not entitled to the remedy of ejectment to regain possession of the land on which the railroad-track is located. Indeed some of the authorities, while denying this remedy, go. to the extent of declaring that the court will frame a decree so as to protect him in preference to other creditors.
In the argument here counsel for the plaintiff in error asked leave to review such of the decisions of this court as seemed to ■conflict with the doctrine that the landowner did not have a remedy by ej ectment in cases where the circumstances were similar to those present here, among them the cases heretofore referred to as having been cited by counsel for the defendant in ■error. It is not necessary, in our opinion, so far as the decision
In our opinion the plaintiff was not entitled to maintain an action of ejectment against the railroad company in the court below, nor recover possession of the land sued for; he having consented to the entry of the company with the knowledge that it was to be used as part of the right of way of the railroad company. This is the only question which we have to decide in relation to his right. It will be time enough to consider his right to compensation in a different form of action when that question is made.
Judgment reversed.