118 Ga. 699 | Ga. | 1903
Fleming brought suit against the Charleston and Western Carolina Railway Company to enjoin it from closing or obstructing a wagon-road leading from his land across the right of way of the defendant. It is alleged in the petition, that the road in question was in existence prior to the year 1858, when the property was owned by Charles DeLaigle, and that it has ever since been used by the owners of the property. Fleming’s property is a portion of the tract formerly owned by DeLaigle. The
It will have been seen that the claim of the plaintiff below that he is entitled by express grant to maintain unobstructed his wagon-road across the right of way of the railroad company is based upon the deed of Mrs. Hughes from which we have quoted. It must be borne in mind, however, that at the time this deed was executed Mrs. Hughes owned only a one-half interest in the land conveyed, having sold the other half to Miller and Lamar; and while she expressly granted to the executors of Robert L. Fleming the right to cross the land occupied by the right of way of the railroad company, Miller and Lamar, her cotenants, expressly declined to grant any such right. It is well settled that where land is owned by several tenants in common, no easement in the land can be conveyed by any except the entire number of the cotenants; for, as all of the land is owned by each of the cotenants, no right in it can be conveyed by one adversely to the others. 10
In view of what has been said, it follows that the grant of an injunction by the court below was erroneous. The judgment is Reversed.