126 Ga. 411 | Ga. | 1906
The Atlantic Coast Line Railroad Company brought an equitable petition seeking to enjoin Bennett from building a fence upon its alleged right of way within about fifty feet from its track, claiming that the width of the right of way, along that portion of the track where the defendant was building the fence,
1. The first ground of the motion worthy of discussion is the one attacking the following charge: “If the railroad company under its charter selected, opened out, and cleared up one hundred feet on each side of its track for its right of way through the land in question, twenty or more years ago, that became the right of way ■of the company; and if the owner of the soil did not move in the matter, or proceed against it for the value of the right of way within the time allowed her by 'law, she would have been barred of ..any right of recovery from the company for the same, and this bar
2. The only other ground of the motion that need be considered is the attack upon the charge of the court on the subject of prescription under color of title, on the ground that there was no evidence of color of title in the case. Here we must differ with counsel for defendant. There was some evidence introduced upon the-trial to show that the original company laid out a right of way two hundred feet wide and maintained that width .during the period of its ownership, and its successors in title, according to evidence introduced by the plaintiff, also kept clear the full two hundred feet. It was admitted by the defendant that one hundred feet on each side of the center of the track was, at the time the road was built,, the necessary and usual width for a right of way; and under the original company’s charter it had the right to appropriate any amount of land for right of way purposes that the directors deemed “necessary for the construction, convenience, and protection of their railroad.” (See Acts 1835, p. 191, sec. 10; Acts 1861, p. 112.) So we do not hesitate to hold that there was enough evidence of color of title to warrant the charge complained of, there
The other portions of the charge excepted to, as intimated above, do not appear to be erroneous for the reasons assigned in the exceptions thereto.
Judgment reversed.