117 Ga. 522 | Ga. | 1903
This was a suit for injunction in Richmond superior court, brought by Mrs. Gardner and others against the Georgia Railroad & Banking Company. The allegations of the petition are substantially as follows: The plaintiffs are the owners of a described tract of land in Richmond county, a portion of which the defendant is seeking to condemn, and in pursuance of that in7 tention it has filed with the ordinary its application for the appointment of appraisers and served plaintiffs with a copy of the application. The strip of land so sought, if condemned, is to be used by the defendant company for establishing a shifting yard for its cars and fox constructing additional facilities outside the ■city of Augusta. More than sixty years ago the defendant company definitely located its right of way and constructed its road in pursuance of the power granted in its original charter in 1833; and it is not proceeding under the general law of the State for the condemnation of private property by railroads, but under the charter granted it in 1833 and amended in 1836. “Defendant company, in seeking to condemn private property, must adopt the method prescribed by the Code of Georgia, section 4657 et seq., and can not proceed in the manner set out in its application.” It has no power to condemn plaintiffs’ property for the purpose stated by it, or for any other purpose, unless it shall proceed under the general law of the State and accept the terms and conditions em
The plaintiffs in error, while admitting that the rule in the Dartmouth College case protects the defendant company from any legislation the effect of which would be to impair the obligation of the contract with it made in the grant of its charter, contend that the doctrine therein laid down does not affect the act of 1894 ■so far as it prescribes a method for the exercise by the defendant company, of its right to condemn private property; that the act of 1894 is remedial only, and its only .effect is to provide a method for the enforcement of the right to condemn. While in a sense this is true, we think there is also a very substantial right involved. Under the amended charter, the company exercising the State’s right of eminent domain obtained a fee-simple title ■ to the land
We think a careful reading of the various acts involved will show that the General Assembly of 1836 had no intention of taking from the defendant company the right to condemn private property for its use in serving the public; and we also think that the language of the transferred section, taken in connection with that of the act making the transfer, was sufficient as furnishing both the power to condemn and the method of procedure to enforce it. That it was the legislative intention to give this power to the defendant company is apparent upon an examination of the various acts passed by the same body contemporaneously with the one now under consideration, incorporating other similiar companies in every section of the State. See act to amend the act incorporating the Chattahoochee Railroad Company, approved December 29, 1836 (Prince’s Dig. 359); act incorporating Flint and Chattahoochee Railroad, approved December 30, 1836 (Prince’s Dig. 367); act incorporating St. Marys and Columbus Railroad Company, approved December 30,1836 (Prince’s Dig. 375); act providing for the construction of the State railroad, approved December 21, 1836 ’(Prince’s Dig. 355). The people of the State felt the need of railroads, and this legislature was doing all in its power to supply that need by encouraging railroad construction. It was clearly the intention of all the acts cited to give to the companies being incorporated the power to take private property upon payment of its value to the owner whenever there was a failure of the company and the owner to agree on'the amount to be paid. In the act of 1833 an abortive attempt to confer this power was made. In 1836 it was the evident purpose to give to this company the same rights which had been given to companies being organized for similar purposes in other sections of the State.
As to the right to condemn for yard purposes, the best authorities are to the effect that under a general power to construct and maintain a public improvement, all the necessary appurtenances are included. “Authority to construct a railroad, with its necessary appendages and the buildings convenient and necessary, is sufficient to justify condemnation for engine-houses, depots, repair-shops, tanks, sheds for storing cars not in use, paint-shops, lumber and timber sheds, buildings for convenient receipt and delivery of freight, space on which to pilé lumber and material to be used on or transported over the road, terminal facilities including track to reach stock-yards of company, to reach elevators and river front; and for wood and coal yards. . . . The power to construct a railroad includes the power to use land condemned for necessary sidetracks and turn-outs.” Mills, Em. Dom. § 59.
If it should be held that a general power to condemn is exhausted in its first exercise, every railroad company, if financially able so to do, would be likely, in order to provide for the future, to take more land than it needed, and this would have a tendency to work a greater hardship upon property-owners than if only so much land was taken as would meet the needs of the railroad company, with the right to make additional condemnations to meet subsequent necessities. As has already been said, it would be well-nigh impossible for a railroad company to determine, at its inception, how much land it would need at the end of a successful career of say twenty years; but even if
The case of Toledo R. Co. v. Daniels, 16 Ohio St. 390, is, in its facts, closely akin to the case at bar. There it appeared that the company had already constructed and had in operation a line from the State of Indiana to the city of Toledo, which was the eastern terminus of the road; that the company had erected its freight-houses and depots at this terminus, and that for the purpose of reaching these various depots and houses with its cars it was necessary to build other tracks and switches on the land sought to be appropriated. It was objected that, the company having already once exercised the power to appropriate the private property of individuals for that purpose, its power of appropriation for the same purpose was exhausted. The court held that a general power authorizing a railroad company to appropriate private property for its own use was not exhausted by its use one time, but that it might be exercised as often as the exigency arose which requiredit. “ The power to make ‘ necessary sidetracks/ prima facie, is the power to make them when they are necessary. Otherwise it would be the power to make unnecessary-sidetracks. Prima facie, power to do any act is power to do it in such, manner and at such time as is usual, convenient, and reasonable/” We have no doubt that it was the intention of the GeneralAssembly,. in chartering the defendant company in the present case, to give it. the power to take private property whenever and wherever it should be necessary to carry out the purpose of its creation, If the citizen could not, in the first instance, prevent the taking of his land for the building of the railroad, what reason is there now to allow him. to check its improvement and increased ability to serve the public ? See, in this connection, the very able opinion of Catón, J., in the-case of Chicago R. Co. v. Wilson, 17 Ill. 127; Mississippi R. Co. v. Devaney, 42 Miss. 555, citing Railway ex parte, 2 Rich. (S. C.) 434, and Railway Co. v. Blake, 9 Rich. (S. C.) 229. In the first of the South Carolina cases cited, Chief Justice Richardson said: “The railroad company had the same power to acquire land, either by grant or by compulsory proceedings, for the purpose of varying, altering, and-repairing their road, as for the original purpose of locating and constructing it.” In the Mississippi case cited supra, many of the cases cited by the text-writers as sustaining the position contended for by.
A careful reading of the opinion in the case of Alabama R. Co. v. Gilbert discloses that the language which we have quoted from it is plainly obiter. It appeared that the charter of the Alabama Great Southern Railroad Company empowered it to condemn for a right of way a certain number of feet in width of road-bed, provided it did not interfere with any building. The company did not condemn any of the land of a landowner on its line, but constructed its road through his land, and used the road-bed only. He biiilt a house upon that part of his land near the track, but which was not, at the time of building, occupied by the company, and remained in the peaceable and adverse possession of it continuously for about nine years, when proceedings were taken by the company to condemn the land to the full extent of its charter power, including that built on. The court held that this could not bé done, because of •the fact that it was provided in the charter that lands on which buildings of any sort had heen erected could not be condemned on any terms whatever against the will of the owner; and it appearing that the company had simply taken possession of a sufficient strip of land to lay its road upon, and had not sought to condemn the amount allowed them on either side thereof, and the landowner
The foregoing disposes of every question made by the bill of exceptions. In dealing with each we have become greatly indebted to counsel on both sides of the case for the valuable aid rendered us in their exhaustive briefs and for the able presentation of their respective contentions before this court. We have carefully considered all the authorities cited by both sides, as well as many others bearing upon the subject which were not cited in the briefs furnished us. The importance of the questions involved has seemed to us to warrant a very full discussion. We have not lost sight of the well-established principle of law, in dealing with this charter, that statutes made in favor of corporations and particular persons, in derogation of common right, are to be strictly construed, and that care should be taken not to extend them beyond their express
Judgment affirmed.