120 Ga. 1 | Ga. | 1904
Francis Jones & Company, a partnership, had served upon W. H. and S. H. Venable, of DeKalb county, a notice under the Civil Code, §§4657 et seq., in which notice they stated that they had leased Rock Chapel Mountain, in that county, from its owners for the term of five years, and were engaged in quarrying granite from said property, and desired to con- ' demn, for the period of five years, under the provisions of the code, a right of way, fifteen feet in width, for a railroad across a described strip of land owned by the Venables, the railroad to run from Rock Chapel Mountain, where the quarry was located, to a point on the Georgia Railroad at or near Iáthonia, Ga. The notice-designated the point at which and the manner in which the proposed railroad would cross the strip of land in question, named the person selected by the applicants to assess the damages for the right of way, and requested the Venables to select an assessor
; The question involved in the case is, whether a person or corporation actually engaged in the business of quarrying granite or other stone, who needs, for the successful prosecution of such business, a right of way for a private railroad across the lands of others, may, in a case of necessity, acquire such right of way under condemnation proceedings. The Political Code §650, provides that a person or corporation actually engaged in such business, who may need, for the successful prosecution of the same, such a right of way, may obtain it “ in the same manner that the right to convey water across the lands of others may be acquired by the owners of mines, as provided by the Code; ” and that manner, as we shall see later, is by condemnation. The court below held, that if, in the statute embodied in this section of the Polit
But these old classifications of private ways are not exhaustive of the subject; for as a private way for any particular purpose could always be created by a grant, and, in theory, always rested upon a grant, actual or implied, it is evident that when one person granted to another a right of way extending from the land of the grantee over the land of the grantor, for the private use of the grantee, in any manner and for any particular purpose, a private way was created. “ These rights are in their extent susceptible of almost infinite variety: they may be limited both as to the intervals at which they may be used — as a way to church, and the actual extent of the user authorized — as a. foot-way, horse-way, or carriage-way.” Gale & Whatley on Easements, * 200. Thus, in Senhouse v. Christian, 1 T. R. 560, a case decided in 1787, it was held, that under the grant of a way, in gross, for carrying coal and other articles, described as “ a free and convenient way, as well an horseway as a footway, as also for carts, wagons, wains, and other carriages whatsoever,” the grantee had the right to lay a “ framed waggon-way.” In a note to the case it is said: “ Mr. Law [who appeared for the plaintiff] explained a framed waggonway to be formed by laying pieces of wood along the road at some depth in the ground on each side, at the distance of the wheels of the carriage, which were joined and kept fast together by bars at equal distances, the interstices being filled up with sand and gravel, so as to render the surface fiat. They are now used for carrying the coals from most of the collieries in the north of Eng
Washburn, in his work on easements and servitudes, in discussing this case, says: “ If, therefore, in the progress of improvement, better or more feasible ways are devised and applied to use than those known and used at the time when the grant was first made, the mine-owner, under a reservation of this general form, might adopt the improved way; as, for instance, he might substitute a railway for a wagon-way, by which to transport the coal from the pit across the' granted premises, although the construction of such new way would subject the land-owner to the inconvenience of having it laid down in the place of the former one.” Wash. Easm. & Serv. 291. Certainly the way reserved by the grant in that case was a private way, and it is equally clear that it did not cease to be such when the character of the physical way was changed to conform to the improved methods of transporting coal from the mines which had been devised long after the deed was executed. In 12 Encyclopaedia of Laws of England, 575, it is said: “ The term wayleave ’ means a right of way. . . In considering the extent to which a wayleave may be used, the very object of the grant or reservation to which it is ancillary
Counsel for the defendants in error contend that “ the case of Garbutt Lumber Co. v. Georgia & Alabama Ry., 111 Ga. 714 et seq., settles the issue in favor of the defendants in error.” The decision in that case in no way conflicts with the conclusion which we have reached in this. It is true, that it was there held that “Sections 4657 et seq. of the Civil Code provide a method to be followed when private property is taken or damaged for public purposes, and the procedure therein prescribed can not be adopted when private property is sought to be taken for a purely private purpose.” That ruling, as applied to the case then under consideration, was strictly correct, but considered as a general rule it is subject to exception. The procedure prescribed in these sections of the Civil Code could not be adopted in that case, for the simple reason that it is one which, in terms, is only applicable when property is to be condemned for public purposes, and had not been made by the legislature applicable to the taking or damaging of private property for such a private purpose as the one involved in the case then before the court. The method which the law has provided for the taking or damaging of private property for public purposes can not be adopted when such property is sought to be taken or damaged for a purely private purpose, unless the' statute authorizing the 'taking or damaging for the particular private use has specially provided that the condemnation procedure shall be the same as that to be followed when the property is to be taken or damaged for public use. As the general method prescribed in sections 4657 et seq. of the Civil Code, in terms, applies only to cases in which the condemnation sought is for public purposes, when these sections alone are relied on as furnishing the condemnation procedure, it must appear that the condemnation is to be for a public purpose. But the legislature has made the provisions of these sections applicable in certain cases where the condemnation sought is for purely private purposes, and, of course, in such cases the method of condemnation provided therein can be lawfully resorted to. In the case upon which counsel relies it was sought to condemn private property for a purely private purpose, when the legislature had neither provided a special condemnation procedure applicable to such a case, nor made the general
Judgment reversed.