146 Ga. 812 | Ga. | 1917
.An owner of land in the year 1877 conveyed to a railroad company, for the purpose of a right of way, a described strip of land through his tract. The deed contained a clause that it was to be void on the failure of the railroad company or its assigns to carry out any of the terms of the deed, one of which was “that said company nor its assigns shall never lease part of said right of way to any one or permit any private person to do any business thereon, or to use it for any purpose except for said railroad as a right of way and its necessary uses.” The grantee railroad company was succeeded by another railroad company, and the successor company is now operating a railroad upon the right of way conveyed in the deed to its predecessor. About twenty-five years ago a telegraph company, without first obtaining the landowner’s consent, constructed its poles and lines of wire on the right of way, and has been continuously using same in the conduct of its business. A year or so ago the telegraph company permitted the Southern Bell Telephone and Telegraph Company, a public-service company, to string its wires upon the poles of the telegraph company without the consent of the landowner. The landowner notified the successor railroad company to discontinue the use of its right of way for the benefit of the telephone company, under penalty of a forfeiture of its estate in the right of way. The railroad company disregarded this notice, and the landowner brought suit against it, alleging, in addition to the foregoing facts, that the railroad company permitted the telephone company to
The deed contained several covenants in addition to that already stated, viz.: to build a depot on the land, and to name the station after the grantor; to employ the grantor as agent for one year; retention by the grantor of all houses on the right of way, which, if removal of them was necessary, were to be moved at the railroad’s expense. It is patent that the moving consideration to the grantor was the construction of a railroad through his property and the location of a station on it. The grantor’s deed reflects his conception of the great value to him and to his property resulting from the operation of the railroad. The covenant against leasing the right of way is not claimed to have been violated. The inhibition against permitting a private person to do business thereon was evidently not intended to apply to the present instance; for the grantor, without protest or action for more than twenty years, allowed the telegraph company to construct and operate its lines on the right of way. If any part of the covenant has been violated, it is that which restricts the grantee to use the land granted and forbids it to permit its use for any purpose except as a right of way of the railroad and its necessary uses. In the first place the charge is that the telegraph company (which had a prescriptive title to erect its poles and string its wires) permitted the telephone company to use its poles on which to string its wires, and that the railroad company permitted or suffered this to be done. If the telegraph company, the owner of the poles, contracted with the telephone company for the latter to string its wires on the poles of the former, certainly the railroad company would not forfeit its title to its right of way by passively suffering them so to do. Nor would such result follow if the railroad company gave its permission to the telephone company to contract with the telegraph
Judgment affirmed.
