77 Ga. 322 | Ga. | 1887
We cannot see that the judge did wrong to overrule this objection. True he was sitting at Americus,in Sum
As the judge considered them, overruling this objection, the presumption is that they were sent in time. Nothing appears to the contrary, and there is no complaint in the record that they were not exhibited to complainants’ counsel as stipulated in the agreement.
Without entering upon the capacity of one railroad company to lease or occupy the whole or any considerable part of the track of another company by virtue of the general law applicable to the charter of this third company, we are not prepared to hold that a short section cannot be used by license voluntarily granted, as well as by condemnation. Without ruling upon the subject in a way to conclude ourselves or either of the parties, we should say that if the second company had this right of way, and has not lost it by abandonment or otherwise, though it might exist only for a term of years, definite or indefinite, that company could now put its track and its trains back, and could allow the third company to run its trains there also until the term expired. And if this could be done, it is not at all clear to us why the second company could not license the third, for the same length of time or any shorter time, to lay down a track and have its exclusive use. Especially in view of the charter of the second company (the Georgia Railroad) and also of the charter of the third company as set out in the general law contained in the code, §§1689(a) to 1689(vv), adopted as the charter of this company by acts of 1S64-5, p. 229. But as the chancellor has done, so do we leave open' all questions of law on the merits of the controversy, to be solemnly adjudicated when there shall be a final trial decisive' upon the rights of these litigants.
We cannot think that the constitutional provision urged upon us so zealously in the argument modifies in any way what would otherwise be correct equity practice in such a controversy as this. Here is a constructed railroad bed already once taken, and the effort is to hold and enjoy under that taking, not to take afresh. It is a contro
With regard to secondary evidence of the lost deed, the chancellor thought proper to admit it upon proof which traced the deed to an agent of the company, and from him to the mail under cover of a letter to the clerk of Bibb superior court, to whom it was sent to be recorded, and upon an affidavit of the deputy clerk that it was not upon record, nor in the clerk’s office, nor had it been received there within six months last preceding. This period covered the time within which it was mailed by the agent. The handwriting of a deceased subscribing witness was proved, together with the substance of the contents of the instrument. Another deceased person, whose handwriting was not proved, was shown to have probably been the other witness to the deed. The only doubt upon the secondary evidence arises out of the omission to examine the clerk as well as the deputy clerk. But this step was somewhat discretionary with the chancellor, and he probably knew of some reason for not exhausting this last source of information. The clerk was of the same court in which the bill was pending, and was, it may be presumed, equally accessible to both parties. Moreover, the paper, if ever received, being one to be recorded and then held in the office till called for, and being neither recorded nor in the office, it was a fair inference that it had been lost in transmission. Under such circumstances, it was not indispensable that this one remaining means of discovering the primary evidence should be exhausted.
Our conclusion is that there was no error of practice committed on the hearing and that the injunction wa? properly denied.
Judgment affirmed.