96 Ga. 562 | Ga. | 1895
In 1838 the legislature incorporated the Augusta & Waynesboro Railroad, which, according to the charter, was to run “ from the city of Augusta to Waynesboro and thence to suitable and proper point of junction with the Central Railroad.” In 1839 the legislature amended the charter, and added: “No other railroad shall be made to run from the city of Augusta, or from the junction of this railroad with the Central Railroad, and in the same direction, within twenty miles of said road, without the assent of said company.” (Acts 1839, p. 89.) In 1847 Millen was selected as the point of junction with the Central Railroad, from which the road was to start to Augusta. The name of the Augusta & Waynesboro Railroad was subsequently changed to the Augusta & Savannah Railroad Company. In 1852 the legislature authorized the Central Railroad and Banking Company to lease this railroad, and in 1862 that company did lease it. In 1884 the Augusta, Gibson & Sandersville Railroad Company was incorporated under the general railroad incorporation law. Its line of road was to run from Augusta to Sandersville. In the same year, the Central Railroad and Banking Company, the lessee of the Augusta and Savannah Railroad, gave permission, by a resolution of its board of directors, to the Augusta, Gibson & Sandersville Railroad Company to lay its track on the right of way of the Augusta & Savannah Railroad for a distance of one mile from the city limits of Augusta. At the time this permission was granted, the Augusta, Gibson & Sandersville Railroad Company was building a narrow gauge railroad. Subsequently all these railroads were placed in the hands of receivers,
1. The first question to be determined is, whether the building and running of the Augusta Southern Railroad is in violation of the chartered rights of the Augusta & Savannah Railroad Company, under that clause of the charter which declares that “No other railroad shall be made to run from the city of Augusta, or from the junction of this railroad with the Central Railroad, and in the same direction, within twenty miles of said road, without the assent of said company.” It will be seen from the map of the State, that these three railroads make almost a triangle, the Augusta & Savannah running southward to Millen, its point of junction with the Central, and the Augusta Southern converging from it near Augusta and running in a southwesterly direction to Tennille, three miles from Sandersville, where it connects with the Central. Between Millen and Tennille the Central runs through Burke, Jefferson and Washington counties, a distance of about forty miles.
2. As above recited, the lessee of the Augusta & Savannah Railroad gave permission to the Augusta, Gibson & Sandersville Railroad Company to lay its track on the right of way of the former. It appears that at the time this permission was given, the Augusta, Gibson & Sandersville Railroad Company had built and was operating a narrow gauge railroad. After it was sold under the mortgage and was reorganized under the name of the Augusta Southern Railroad Co., it undertook to broaden the gauge of its road and still use the right of way of the Augusta & Savannah Railroad. Under the facts disclosed by the record, we think the permission given was a mere license. A license, as a term of real estate law, is defined to be an authority to do a particular act or series of acts upon another’s land without possessing any estate therein. “The licensee has the right to do any act which is necessary for the full enjoyment of the license, but the terms of the license must be strictly followed and cannot be extended or varied.”