91 Ga. 573 | Ga. | 1893
Injunction was granted at the instance of the municipal authorities of Waycross, restraining the Brunswick & Western Railroad Company from constructing a sidetrack or “Y” to make a connection with another railroad, the proposed construction crossing Plant avenue in that city. The case is the same that was before this court at the October term, 1891, on exception to the
A vital element of dedication is the intent, the animus declicandi; and where the dedication results from mere use and acquiescence, it is not to be inferred that the donor parted with more than such use necessitates. He may continue afterwards to use the property for any purpose not inconsistent with the use to which it is dedicated. Washburn, Easements, *187. Here there was a qualified dedication of an easement to cross the track and right of way of the railroad company. It was qualified by the right of the company to continue the use of its right of way for the passage of its locomotives and cars. Bid the dedication restrict this use to their passage on the one track then existing, or did the right continue as to the whole of the right of way owned by the company at that time, and which extended one
As, therefore, the public and the railroad company could occupy jointly for their respective uses the whole of the right of way as well as the part covered by the existing track, the occupancy by the public is not to be treated as excluding that of the railroad company from any part of the premises. In this case there was no showing that the side-track was unnecessary or that it was being constructed in such manner as to interfere to an unreasonable degree with the use of the street by the public, and the injunction was not based upon that ground. The court, in making the injunction permanent, held that the dedication precluded any further railroad use of the street outside of the track in use at the time of the dedication. This we think was error.
The case of City of Cohoes v. Delaware, etc. Canal Co., 134 N. Y. 397, relied upon by counsel for the defendant in error, is distinguishable from the present case, and the views announced by the court in that case do not conflict with our holding in this.
Judgment reversed.