Atlanta & West Point Railroad v. City of Atlanta
156 Ga. 251
Ga.
1923
Check Treatment

Lead Opinion

Gilbert, J.

The first headnote does not require elaboration.

A municipality may acquire an easement by dedication. Southern Ry. Co. v. Combs, 124 Ga. 1004, 1010 (53 S. E. 508). Dedication is a question of intention; and intention by the Atlanta Belt Line Company to dedicate, on the day it made a settlement with Barth for a right of way and for an extension of Berne Avenue, is perfectly clear. The only thing remaining to be done to make the dedication effective was for the City оf Atlanta to accept the dedication on the terms named in the agreement. The City of* Atlanta has accepted the dedication by extending Berne Avenue on each side up to the right of way ’described in the agreement. This is shown explicitly by the resolution of the mayor and council. The agreement is not a promise to dedicate in the future, in the sense that something else was to be done by the Belt Line Company to make the dedication complete. If the agreement had read, “the said plaintiff now agrees to allow the opening of said avenue across its right of way if thе City of Atlanta or Fulton County shall hereafter extend Berne Avenue in such, manner as to cross the line of plaintiff’s right of way at or near its station No. 221, extending thence through the property of the defendant Barth,” it would have ’ meant exactly what it means in its present shape. The agreement was for a consideration. The proceeding to condemn Barth’s land was settled on the basis, in part, of the dedication. Barth was interested in land adjoining the right of way concerned, and hence was himself interested in the dedication; and it clearly appears from the agreement that the Belt Line Comрany made the dedication as a part of the agreement, just as the money to be paid to Barth was a part *255of the agreement which induced his consent thereto. To relieve the Belt Line Company, if it owned the property now, from the dedication, would be to relieve it from a pаrt of the burden imposed by its own agreement. Town of Mableton v. Lowe, 142 Ga. 723 (83 S. E. 665). No particular form of words is required for making dedication; it may be done orally or in writing, or it may be inferred from acts, and it’s acceptance may be shown by any acts of the municipality recognizing the existence of that street as one of the streеts of the city. Any improvement on the street by the' public authorities in recognition, of the dedication may be regarded as an acceptance of the dedication. Ellis v. Hazlehurst, 138 Ga. 181 (75 S. E. 99). Acceptance by the city was to be in the future, but this does not affect the fact of the dedication. Town of Derby v. Alling, 40 Conn. 410. Where a dedication is made by deed, the grantor, the grantee, and the public are parties to the transaction, and the ‍​‌​‌​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌‌​‌​​​​​‌​‌​‌‌‌‌​‍title to the land dedicated vests in the public for the uses named and on.the conditions stated in the deed. Compare Bayard v. Hargrove, 45 Ga. 342; Harrison v. Augusta Factory, 73 Ga. 447. The following cases from courts of other jurisdictions bеar out the proposition above announced. Surface v. Atacosa County, 244 S. W. 591; Phillips v. Laguna Beach Co., 211 Pac. 225; Waggeman v. North Peoria, 160 Ill. 277 (43 N. E. 347). Applying the principles just announced, we hold that the City of Atlanta did acquire an easement across the railroad right of way of the Atlanta Belt Line Company by virtue of the contract between Barth and said company.

It is cоntended that the Atlanta Belt Line Company, before it sold its property to the plaintiff in error, had excavated a deep cut where the street is proposed to be opened, more than two hundred feet wide and several hundred feet long; that after doing this it sold to' the plaintiff in error all' оf its property, as stated in the petition; and that by reason of these facts the plaintiff is estopped from obtaining rights under the alleged agreement. We cannot agree to this position, for the reason that the dedicator is estopped, so long as the dedication continues, from asserting any right in the soil inconsistent with the public easement. Brown v. East Foint, 148 Ga. 85 (95 S. E. 962). The cut was contemplated at the time of the dedication. As the agreement shows, the land acquired was through condemnation proceedings for a right *256of way, and the parties must have had in view that if a cut was necessary -it would be made. It wаs because of the contemplated cut that the agreement provided that the Belt Line Company would build a bridge for the use of the public when the dedication should be accepted in accordance with its terms. The cut, therefore, was not inconsistent with the dedication; but even if it should ‍​‌​‌​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌‌​‌​​​​​‌​‌​‌‌‌‌​‍be held so to be, it cannot be said that the railroad by making the. cut could destroy the dedication. The sale would not destroy the dedication, because the right of way through Barth’s land was acquired through condemnation proceedings, and the agreement in question was a part of the case; and whether it took effect as a deed or as a judgment of the court, the Atlanta & West Point Bail-road Co., as purchaser from the Belt Line Company^ is charged with notice of dedication, as the agreement and the judgment of the court clearly showed the dedication, and the purchaser is charged with notice of the recitals in the agreement. Georgia Southern Railroad v. Reeves, 64 Ga. 492, 496; Horne v. Macon Telegraph Publishing Co., 142 Ga. 489, 492 (83 S. E. 204, Ann. Cas. 1916B, 1212).

The fourth and fifth headnotes do not require elaboration.

“ All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavatiоns or embankments, according to the spirit of the road laws.” Civil Code (1910), § 2673. In Western & Atlantic R. Co. v. Atlanta, 74 Ga. 774, it was held: “The duties required of railroad companies by the provisions of sections 706 and 707 of the Code of this State [Civil Code of 1910, §§ 2673, 2674] apply to streets as well as public and private road crossings.” “ The words, ‘ established pursuant to law,’ аppearing in the Civil Code [1895], § 2220 [1910, § 2673], following the words, ‘the public roads or private ways,’ limit and qualify only the words, ‘ private ways,’ and have no reference to the words, ‘public roads.’” Southern Ry. Co. v. Combs, supra. The city may by mandamus require a railroad to perform its statutory duty to the public in the matter of building bridges across its tracks, to the end that the street crossing may be safe and thus prevent injury to persons and property, rather than delay taking action against the railway until injury and damage has resulted. County *257of Gordon v. Calhoun, 128 Ga. 781 (58 S. E. 360). In 18 Corpus Juris, 118, § 144, speaking of dedications to the public, it is said: “ The municipality through its proper officers ‍​‌​‌​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌‌​‌​​​​​‌​‌​‌‌‌‌​‍may maintain suits to enforce аnd preserve the use for which the property was dedicated.” Again, on page 132, § 178, it is said: “ The municipality in which the land dedicated is situated, as trustee for the public, may and should maintain proceedings to enforce and preserve the use, although not the holder of the fee-simple title. This rule аpplies to territory taken into the corporate limits after the dedication, as well as to territory included at the time of dedication. It applies also although the municipality was not incorporated at the time of the dedication. So it is not essential to the right of a municipality to enforce and protect its right to dedicated streets that it should have theretofore obligated itself to maintain or repair the streets. Where lands are dedicated to the use of the inhabitants of a city or incorporated village for a public square, a bill may be filed in the name оf the corporation to restrain the erection of a nuisance thereon or to protect the equitable right of the corporators to the use of the public square as such, and it may maintain ejectment to recover possession of the dedicated property from the dedicator or from any one wrongfully withholding it to the exclusion of the public.” Applying the foregoing principles, we hold that the City of Atlanta, having acquired an easement by dedication to a crossing over the railroad right of way, could legally proceed, consistently with its charter powers, tо require the railroad company to build a suitable bridge.

A municipality, being the creation of the General Assembly, is invested with limited powers. When and under what conditions, therefore, is the City of Atlanta empowered to institute a proceeding to require a railroad to build a bridge, as indicated in the next рreceding division? What would be the case if the charter of the city were silent on that question will not be considered, because it is not involved in this ease. The General Assembly have declared precisely what power was delegated to the city on that subject, and the maxim “ expressio unius est еxclusio alterius ” applies. When the legislature has made a clear and comprehensive declaration of power on a given subject, such declaration is exclusive and constitutes a limitation within which the municipality must act. In the charter of the City of Atlanta the General Assembly of Georgia *258granted power to the city as follows: “ The mayor and general council of said City of Atlanta are hereby authorized and empowered to require all railroads and railroad companies to erect suitable bridges across their tracks and road-beds, where the same cross thе public streets of said city, in all cases in which said mayor and general council shall declare the same necessary for the protection of human life.” City Code of Atlanta, § 385; Ga. Laws 1889, p. 819, § 16. This is a clear and unambiguous declaration of the power granted by the General Assembly to the City of Atlantа for the purposes named. It is the only grant of power of that character by the General Assembly to the City of Atlanta, in so far as we have been able to ascertain from our investigation and from citations in the brief of counsel. This section of the charter of the city therefore providеs the only rule by which we are to determine whether the City of Atlanta may require a railroad to build a bridge across its tracks. This grant of power cannot be enlarged by construction.' The grant of power to a municipal corporation must be construed strictly, and such corporation can exercise no powers except such as are expressly given or are necessarily implied from express grant of other powers. Lofton v. Collins, 117 Ga. 434 (43 S. E. 708, 61 L. R. A. 150); Walker v. McNelly, 121 Ga. 114 (48 S. E. 718). The mayor and general council of Atlanta declared by resolution what they deemed to be the necessities of the situation. That resolution deсlared that “the safety, convenience, and welfare of the general public require” the improvement of Berne Street and the construction of the bridge. This is not a declaration that the building of the ■ bridge was “ necessary for the protection of human life.” It is not a compliance with the charter requirements, literally or in substance. “ Safety of the general public ” may, in some instances, amount to the “ protection ‍​‌​‌​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌‌​‌​​​​​‌​‌​‌‌‌‌​‍of human life,” but it does not necessarily amount to such in all cases. “ The safety, convenience, and welfare of the general public ” may have, and the court must know that it often does have, reference to dangers that do not involve human life, but only to happenings of less vital import. ■ The mayor and general council of the City of Atlanta must be presumed to know the circumstances of the situation, and it must be presumed that they declared the facts truly as they existed. If human life was not menaced, but only the safety, convenience, and *259welfare of the general public was involved, the city authorities were only justified in so declaring, and it is to be presumed that they did their full duty in the premises. It will also be assumed that, as all officers are presumed to perform their duty, when the situation becomes such that the building of the bridge in question is necessary to the protection of human life, the mayor and general council of the City of Atlanta will so declare. It was error to refuse to sustain the general demurrer to the petition.

Judgment reversed.

All.the Justices concur, except Bussell, G. J., and Hines, J., dissenting.



Dissenting Opinion

Hines, J.

I dissent from the principle announced by the majority of.the court'in the eighth headnote and the corresponding division of the opinion, and from the judgment of reversal. The resolution of the mayor and council of Atlanta is tantamount to a declaration that the building of this bridge is necessary for thе protection of human life. In my opinion the judgment of the court below should be affirmed.

Bussell, C. J.

The Atlanta Belt Line Bailroad made a contract in which, among other things, it agreed to build a bridge across its tracks where these tracks were crossed by a street which *260had been dedicated to the city. This is a contract involving the performance of a public duty (building a public bridge) in which the public has an interest. The resolution ‍​‌​‌​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌‌​‌​​​​​‌​‌​‌‌‌‌​‍of the city council conformed to the contract. No amount of argument can convince me that the trial judge erred when he, by mandamus, required the Atlanta & West Point Railroad Cоmpany to build the public bridge which its predecessor, the Atlanta Belt Line Company, had promised to build. Mandamus is the proper remedy. The demurrer was properly overruled. The city ordinance is inapplicable in view of the promise to build the bridge included in the original contract under which the railroad obtained its right of way. It is admitted that there was, a dedication; and it must be admitted that a municipal corporation has the right by the general law of the State to require railroads running through the municipality to make suitable crossings (bridge or otherwise) across the railroad tracks (Civil Code of 1910, § 3673); and fоr that reason the trial judge could properly consider the municipal ordinance on the subject of bridge crossings as merely cumulative of a right already conferred by the laws of the State. Omitting any other consideration, the judgment of the trial judge was' right because it was absolutely required by the cоntract, which is as binding as to the building of the bridge as it is to the gift of the land.





Concurrence Opinion

Beck, P. J., and Atkinson, J.,

concurring specially. The petition of the plaintiff does not show that it had in any way acquired an easement across the right of way of the defendant company. The plaintiff could only claim this in virtue of the contract between thе predecessor in title of the defendant and Barth; and the weakness of the plaintiff’s case is that it does not show that it had opened a street or contemplated opening a street in accordance with the terms of the contract. The resolution adopted by the council, сonstrued according to its express provisions, contemplated the opening of the street named “ through the right of way” of the respondent. To merely open a street through the right of way of the respondent would not be opening such a street as was contemplated in the contract referred to, which provided that the railroad should construct a bridge in case the municipality opened a street “ over the right of way of the railroad and thence extending through the lands of Barth,” and there is nothing in this resolution to show that the street is to be “thence extended through the lands of Barth,” independently of that contract. For these reasons we concur in the judgment of reversal.