123 Ga. 483 | Ga. | 1905
(After stating the facts.) 1. “ The plenary power of the legislature over streets and highways is such that it may, in the absence of special constitutional restriction, vacate or discontinue the public easement in them, or invest municipal corporations with this authority.” 2 Dill. Mun. Corp. ("4th ed.) § 666. “ But the power must be conferred in express terms or by necessary implication, and the construction of ambiguous words alleged to confer it ‘ ought to be in favor of the common right of - highway.’ Highways can not, in any event, be discontinued for the purpose of devoting them to private and inconsistent uses.” Elliott, Roads & Streets (2d ed.), § 875. Such is the law as heretofore announced by this court. Marietta Chair Co. v. Henderson, 121 Ga. 403-404. No express power to vacate a public
2. It does not follow, however, that merely because the city was without power, to close Waverly place and permit the railway company to use it for terminal facilities, the plaintiffs were, entitled to the injunction they sought against the railway company to prevent it from taking possession of the street or making any alterations therein. They are undoubtedly correct in their contention, that, as matter of law, the building of terminal structures in the street would amount' to a public nuisance (Daly v. Railroad Co., 80 Ga. 793), as would also the using of the street as a switching yard or place; for the delivery of freight (Atlantic & Birmingham R. Co. v. Montezuma, 122 Ga. 1), or the unauthorized laying of its tracks longitudinally along the surface of the street. Davis v. Railroad Co,, 87 Ga. 605; Augusta R. Co. v. Augusta, 100 Ga. 701. But unless, from the unauthorized use of the street, the plaintiffs will suffer injury not common to the general public, peculiarly affecting their property rights and causing special damage to them, they can not maintain an action to either enjoin the nuisance or to re
3. If for any reason Coker was entitled to the relief sought, it was upon the theory that the unlawful closing of the street by the city and the placing of obstructions therein by the railway company would deprive him of the benefits of one of the principal avenues of approach to his place of business, rendering it less valuable and less remunerative to him. If such would be the result of the closing of the street, then Coker would be entitled to an injunction to prevent the visitation upon him of this special injury. Georgia Southern R. Co. v. Harvey, 84 Ga. 372, s. c. 90 Ga. 66; Brunswick & Western R. Co. v. Hardey, 112 Ga. 604; Savannah & Western R. Co. v. Woodruff, 86 Ga. 94; S., F. & W. Ry. Co. v. Gill, 118 Ga. 737, 745-6. The evidence introduced in his behalf showed that this would undoubtedly be the case in the event Waverly place were closed and no street to take its place were opened and maintained.
4. As a matter of defense, the defendants offered the affidavits of a number of persons who therein expressed their conviction,
5. The defendants also sought to overcome the prima facie case made out by the plaintiffs, by showing that the new street to be opened across the property of the railway company would not only fully take' the place of Waverly place, but would afford better access to Coker’s place of business and render his property more valuable. Evidence to this effect was objected to, but was held to be admissible. The plaintiffs’ objections were that the evidence was irrelevenf and immaterial, (1) because the unlawful occupancy of Waverly place by the railway company would be a public nuisance, and no benefits flowing to plaintiffs from the opening of the new street could be set off against the injury inflicted by closing Waverly place, and (2) “because the rights which the city would acquire in the proposed new street were not equal in character or nature with those which it possessed in the present Waverly place, the latter rights being perpetual, while the rights in the new street were conditioned upon the happening of the event provided for in the ordinance, at which time the right to use the strip of ground known as ‘New Waverly place’ would be lost to the city and the public.” The first of these objections was not well taken. The purpose of the evidence was, not to set off benefits against damages, but to show that the closing of Waverly place, under the terms of the ordinance, would not result in any special injury to Coker or damage to his property. If such were the truth- of the matter, he could have no standing in court as an aggrieved party. Farkas v. Towns, 103 Ga. 154.
The second objection is not to be so easily disposed of. The
6. Counsel for the defendants in error call attention to the fact that there was no evidence going to show that Kendrick would sustain any special injury by the closing of the street to the public, and insist that Coker had by certain conduct, prior to the passing of the ordinance, estopped himself from setting up its invalidity. It appears, that, pending the negotiations between
Judgment reversed.