73 Ga. 428 | Ga. | 1884
This bill was brought by Harris, against the city of Macon, the Macon Street Railroad Company, the Bibb Manufacturing Company, and others, to enjoin the defendants from running a railroad by steam over Hawthorne street, and to recover damages therefor. To this bill a demurrer was filed separately by the city, and jointly by the other defendants, alleging that there is no equity as against the city, by its demurrer, and none against the other defendants, by theirs. The demurrer was overruled, and the defendants assign for error that judgment.
The bill and demurrers are fully set out in the report at the head of this opinion. Substantially the facts alleged in the bill, and admitted by the demurrers, are: That Harris is a citizen of Macon and the owner of property on the street, and on which he resides; that the Street Railroad Company was chartered for public, and not private purposes and use, and whilst the company, by their charter, could use steam to propel its cars, by and with the consent of the city, that it could not do so for private use;. that yet it was now so used by the consent of the city, in that it was employed by the Bibb County Manufacturing • Company to convey coal and other materials thereto; that the city contracted with the Manufacturing Company to - allow this privilege to the Railroad Company in consideration- of the sum of one hundred dollars annually paid it, and in consideration that the Manufacturing Company would save the city harmless from any damage arising •
The question made is, is there equity in this bill ?
We think that the charter of the Street Railroad Company, to be found in the acts of 1868, pages 107 and 108,
Inasmuch as the city has granted a privilege which it had no power to grant, to the damage of the private property of one of its citizens, there is equity in the bill to enjoin the unwarranted act on the part of the city and to stop the damage which its authority has permitted.
They are joined, upon the common principle in equity practice that all persons in interest should be joined. Discovery is sought, and an attack is made on the legality of the purchase and title to the corporate franchise of the Street Railroad Company, and they, complainant is advised, claim an interest therein.
This opinion, let it be remembered, rests upon the allegations in the bill, which the demurrers concede to be true. On the coming in of the answers and the proof made on the hearing, the facts then elicited may make a different case. We now only decide that, on the facts here before us, there is equity in the bill, and there was no error in overruling the demurrers and declining to dismiss the bill. Constitution, Code, §§5024, 5095; 42 Ga., 501.
Judgment affirmed.