98 Ga. 54 | Ga. | 1895
We are not now to consider whether in a proceeding to condemn as for a public way the property of the citizen the public acquires a greater interest in the property condemned than is necessary to the enjoyment of the right of way; nor are we to inquire whether in such a case the public would be authorized to impose upon the land seized to public use
The original owner of the property caused the same to be platted and laid off into lots, with intervening streets. Tie did not leave to the determination of the law whether in this act he intended to devote the latter to a public use, but on the contrary, by solemn covenant expressed in writing, he declared that he dedicated and set apart for all time to come the streets included in such plat, primarily for the special use, benefit and convenience of the persons who might thereafter purchase, own or occupy any of said lots, and incidentally for the general use of the public. Under this act of dedication tire municipal authorities entered, took possession of and improved the particular street in question. The owners of abutting lots desire to lay a railroad track across this street, connecting their premises, and the municipal authorities, conceiving that such structure will in no xxx anner interfere with the reasonable exxjoyment by the public of its right of way, have consented. Private individuals owning other lots abutting at another point on the same street and upon other streets embraced in and covered. by the same act of dedication, prayed injunction, and insist that under the px*ovision of our code, section 719, the municipal authorities caxxnot authorize the construction of the proposed x’ailroad tx’aclc across the street in question. It will be seen that the code provision in question relates to the appropriation of a public highway by a railroad company; and it must be conceded that if this was an ox’dinaiy highway and it was the pxxx’pose of the railx’oad company to ap
Tn order to determine the rights of the parties, it is necessary to inquire as to the extent of the interest acquired by the city under the act of dedication in the present case, and, determining that question, we will further inquire as to the relative interests of the abutting lot owners. It would have been possible for the owner in the net of dedication to have conferred upon the city authorities the fee to the streets, in which event the right of the abutting lot owner would have been limited to its uses as a mere way; he would have had no right or interest beyond that which the general public was entitled to enjoy. But the city authorities contented themselves with an acceptance of the mere incidental general public use, in subordination to any other consistent right of the abutting lot owner, to whose special use in the same public act of appropriation the streets had been devoted for all time to come; and for this reason the city acquired no greater interest in the premises so set apart as streets than was necessary to the reasonable and proper exercise of the incidental right of way conferred upon the public in the act of dedication. The effect of the creation of the easement in the city and the dedication of the land in question to the special use declared for an indeterminable period of time, was to pass the fee to the abutting lot owner and give to him the right of any free and uninterrupted use which would be consistent with the exercise by the public of its general right of way.
We thus conclude that, under the act of dedication in the
In the present case the parties sought to be enjoined were, the one a railroad company, the other a manufacturing company. They owned lots opposite each other and abutting upon the street in question. The latter desired the construction of a spur-track so as to connect the two lots, and thus give it connection with the other company’s railroad. They each agreed to this, and the municipal authorities consented, by resolution declaring that the public would suffer no inconvenience from the construction of the proposed track. We think, inasmuch as the city authorities held only an easement to the extent of a right of way, that there was no abuse by them of their discretion in allowing the owners of the fee the uses of the street for the purposes above mentioned. ' It was a valuable right to the owner of the lot. Proper precautions were taken to protect the interests of the public, and there is no reason why he should have been deprived of that right.
Of course we cannot undertake to say that the proposed track may not hereafter, either because of the manner of its construction or the manner of its use, become a nuisance and subject to abatement as such. An increase in population or travel may bring about such a result. But under the present record, we hold that in favor of the owner of the fee in the street the city authorities had the power' to' authorize a joint enjoyment of the property, and that their discretion was not abused when it was determined that the proposed use by the owner of the fee was not inconsistent with the exercise by the public of its dominant right of way.
Judgment affirmed.