142 Ga. 686 | Ga. | 1914
(After stating the foregoing facts.)
The whole question was very elaborately considered by Wiswell, C. J., in Ulmer v. Lime Rock R. Co., 98 Me. 579 (57 Atl. 1001, 66 L. R. A. 387). In that case a railroad company commenced proceedings to condemn, under its power of eminent domain, a right of way over the land of the complainant, for the purpose of building thereon a branch track from one of its main lines to a lime quarry owned by a private corporation. He said: “The tests decisive of this question as to whether a branch track of this character is to be constructed and operated for public or private purposes, deducible from the great weight of authority upon the question in this country, are these: if the track is to be open to the public, to be used upon equal terms by all who may at any time have occasion to use it, so that all persons who have occasion to do so can demand that they be served without discrimination, not merely by permission but as of right, and if the track is subject to governmental control, under general laws, as are the main lines of a railroad, then the use is a public one.”
Of course the construction of a spur-track from the main line of a railroad company for the purpose of serving an individual enterprise only is not a public purpose. Bradley v. Lithonia &c. R. Co., 141 Ga. 741 (82 S. E. 138). In that case the court held that the evidence was contradictory upon the question of whether it was being constructed to serve the public generally or merely a private enterprise, and upheld a judgment refusing an interlocutory injunction against the railroad company’s condemning land for the construction of a spur-track. In Mayor &c. of Macon v. Harris, 73
The court was authorized to find from the evidence that the construction of the service track on Hampton street was not for the exclusive benefit of any private individual, but for the purpose of serving any person along the street, or adjacent to it, that could use the samev
Judgment affirmed on both bills of exceptions.