9 Ga. 359 | Ga. | 1851
By the Court.
delivering the opinion.
I do not propose, on the present occasion, to review any of the doctrines held by this Court, when these parties were last before us, in January, 1849. See 6 Ga. Rep. 130. We see no reason to change or modify any of the principles then enunciated. Moreover, we agree with the counsel for the plaintiff in error, that the questions made by the record, are entirely new, and uncontrolled by any previous adjudications -which we have made. It is true, that the argument which has been submitted by Col. Benning, controverts some of the positions which we endeavored to establish in the previous case. His bill of exceptions, however, steers clear of them, and we are content to address ourselves exclusively to that.
The corporation brought this case into Court. They were the movants or actors, and the appeal does not change the relation of the parties as they originally stood. The damages in this, as in all other cases of appeal, have to be assessed, de novo, upon the evidence produced before the Special Jury. On this point, then, we think the judgment of the Circuit Court was correct, and ought to be affirmed.
A preliminary motion was made by the Harrisons, to quash the whole proceeding, upon the ground that the award from which the appeal was entered, by a majority only of the appraisers, and not by the whole number. Counsel waives this objection, on account of a decision already rendered at this term, in the mandamus case between Bell and Strange, covering this exception.
There is no doubt that seven years’ uninterrupted user of this ferry, would be prima facie evidence, at least of a prescriptive right. Proof of a regular usage for twenty years in England, (in this State seven,) not explained or contradicted, is that upon which many private and public rights are held, and sufficient for a Jury in finding the existence of an immemorial custom. 2 Barn. & Cres. 54. 2 Saund. 175, a. d. Peake’s Ev. 336. 2 Price’s R. 450. 4 Ib. 198. Every such claim is good if, by possibility, it might have had a legal existence. 1 Term Rep. 667. And Lord
But the difficulty here is, that the commencement of the user runs back only to 1832, which is within less than seven years of the time when the charter for this bridge was granted by the Legislature. The party, therefore, cannot claim title by prescription, and the Court was right in rejecting the evidence.
When land or any other property is taken for public use, the owner is entitled to compensation for its whole value; — not for this or that particular object, but for all purposes to which it may be appropriated. Suppose I have on my premises a waterfall, admirably adapted to machinery, and a portion of my land is seized and applied to the erection of a bridge or the construction of a railroad, so as to render the water-power unavailable ; in computing my damages, ought not this fact to be taken into consideration ? The value of land or any thing else, is its price in the market. Concede, then, that the right to erect this bridge is not in the Harrisons, but has been bestowed by the State
Counsel for the Harrisons requested the Court to charge the Jury, that they could find nó verdict for the company, which would vest in them the title to the land in dispute, because there was no evidence to show that they had complied with the terms imposed by their charter, as- a condition precedent to any right to be acquired under the Act of incorporation; and further, that
The Court refused to charge as requested, but, on the contrary, instructed the Jury, that it was the duty of the Inferior Court to see that the law had been complied with, as to all these preliminary matters, and the presumption was that the Court had discharged its duty.
There are two questions presented in this part, of the record—
But again we say, that this matter was not open at this stage •of the proceeding — the amount of the damages being the only •question that was put in issue by the appeal.
Judgment reversed.