117 Ga. 441 | Ga. | 1903
In December, 1893, R. N. Williams conveyed to J. J. Williams 327 acres of land, adjoining lands owned by one Holloway and others, and lying in the 45th district of Bulloch county. The deed evidencing this transfer of title was properly executed, but was not recorded. In January, 1899, J. J. Williams sold to W. C. Thomas all the timber suitable for sawmill purposes standing on 199 acres of the tract just mentioned, and conveyed to him a right of way over that portion of the land upon which this timber was situated. The deed made in pursuance of this sale and grant of a right of way over 199 acres of the tract of land owned by J. J. Williams was filed for record on December 1, 1902. In the early part of 1901, he “resold the land to R. N. Williams,” but “ neglected to make him a conveyance thereto, although he paid all the money at the time he purchased.” On April 17, 1902, R. N. Williams executed and delivered to the Perkins Lumber Company a deed, whereby he undertook to convey to that company a right of way over the land he had repurchased from J. J. Williams. This deed was recorded on December 2,1902. Since the date of the conveyance from J. J. Williams to Thomas, the latter has exercised rights of ownership over the land therein described, by “ off and oh ” cutting the timber sold to him. “ R.- N. Williams and J. H. Perkins, as agent of the Perkins Lumber Co., both had full knowledge and notice of Thomas’s rights at the date of the deed from R. N. Williams to ” that company. It desired to construct a tramroad from Hagan to Register. While a route was being surveyed between those points, and at a time when John H. Perkins, one of the directors of the company, was “ acting for it in acquiring the right of way, assisted by J. J. Williams,” Thomas “had a conversation with them, in which they discussed some difficulty” the company was encountering “ingetting a right of way through the Holloway land,” which was ad
To this petition Thomas filed an answer, in which he denied that he had applied for and been refused permission to cross the road of the company. On the contrary, he alleged, it consented to his crossing its line at the point in question; “ that while he was constructing [his] said road, he discussed putting in his cross-frog' with ” the company’s “ general manager, Mr. Carl Perkins,” who told him that he (Perkins) “ would send his hands down and put in the frog, and only charge him the actual cost of same.” Thomas also set forth in his answer the following allegations of fact: The company, before acquiring its right of way, had actual notice of his-rights in the Williams tract of land. He did have “ a conversation with plaintiff’s officers, in which they suggested that he use part of their ‘ Y,’ as alleged; and he suggested that this would cause him considerable trouble and expense, as he had already built about 3/4 mile of his road, and plaintiff told him they would let him know definitely later what they would prefer him to do in the matter, but, instead of doing so, applied immediately for a restraining order.” The point “ where he has crossed plaintiff’s road is the most convenient place for plaintiff and himself for him to cross it; and if he should use the portion of their ‘ Y’ and the route they suggested, he would have to buy right of way for a considerable distance, a great portion of which would go through the town of Register, and several farms and cultivated fields, and would incur heavy expenditures for same, and great loss in abandoning that which he already has, and in moving his road.” He had actually
Both the petition and the answer were sworn to. At the hearing of the case, at chambers, evidence was introduced which, in addition to the facts hereinbefore recited, disclosed the following state of affairs: “ The average railroad-train of plaintiff is composed of about seven loaded ears, besides engine; the maximum train of about eleven loaded cars, besides engine; and it would be impossible for even an average train • — in fact, for one [having] over five loaded cars — to be stopped at” the proposed crossing, in view of the steep grade, near this point, on the company’s line of road. By “ taking up the railroad track of plaintiff, suspending its railroad business while the change was being made, and grading the steep hill several hundred yards away (not on the Williams right of way), the grade of plaintiff’s railroad could be made sufficiently level for defendant to cross the same, but the physical work of such grading would cost about two thousand dollars.” There is “no point on the Williams right of way claimed by defendant at which [he] could safely cross the railroad of plaintiff, unless the grading of the big hill was done.” The distance from the top of this hill to its foot is some 1620 feet, “ and the fall in that distance [is] 52 ft. and 10 in.” From the foot of the hill to a point some 240 feet in the direction of Register, there is a “practically level track, and the proposed crossing of defendant [is] located within a few feet of the end of the level track.” Thence there is a slightly ascending grade for a distance of 780 feet, “thefall on that grade [being] one foot to the hundred.” Any crossing by Thomas of plaintiff’s road, “ in order to be safe, must be at least fifteen hundred feet north of his proposed crossing.” This point would not
His honor of the court below refused to grant the injunction prayed] for by the Perkins Lumber Company, and it sued out a writ of error to this court. On the argument here, counsel for the company invoked the doctrine of equitable estoppel in support of its contention that Thomas should be enjoined from crossing its road at any point on the Williams tract of land. In the first place, much stress is laid on the conversation between him and the company’s representatives, at a time when the latter were experiencing some trouble in acquiring a right of way for its road. One of them, J. J. Williams, certainly knew all about Thomas’s vested rights at that time; for J. J. Williams was Thomas’s grantor. Moreover, in the course of that conversation Thomas gave to John H. Perkins, a director of the company, express notice of the fact that he (Thomas) had already acquired “a right of way through all this Williams land.” True, Thomas, at the same time, offered to allow the company to “go through on [his] right of way,” if its representatives should encounter “ any trouble in getting a right of way through the Holloway tract,” as then contemplated. But this offer was never accepted. On the contrary, the company’s representatives went to R. N. Williams, who was then the equitable owner of the land, and got him to m-ake a deed to the company covering the route through the land they had selected. Thomas was altogether ignored, notwithstanding it was his privilege to elect over what particular route through the Williams land he would construct his road. By not exercising this privilege, but standing by and allowing the company to build its line, he doubtless estopped himself from asserting a right to select and occupy the route it chose. But the company certainly was not justified in assuming that he was willing, without any consideration whatsoever and without even being consulted, to altogether relinquish his rights in the premises and abandon his project of building a road from his sawmill to the tract of timber he had purchased, which could not be reached without crossing, at some point, the right of way chosen by the company. Neverthless, it so graded (?) its road as to render the operation of its cars perilous to him, in the event he crossed its line at any point on the Williams tract. Within the limits of that tract
In other words, to properly construct a tramroad over the hill at the place selected by the company was by no means inconsistent with a use by Thomas of a road built across the Williams tract, intersecting, at the point chosen by him, the road of the company. The steep grade which it chose to establish, in order to save itself expense, will have the effect of rendering its road less useful and profitable in the future, if Thomas is permitted to complete his road as contemplated. That is to say, the company will no longer be able, as in the past, to operate over this grade an “ average ” train, composed of an engine and “ about seven loaded cars,” but only trains having, besides a locomotive, not “ over five loaded cars.” This state of affairs should have been, if it was not in fact, anticipated at the time the company built its road. If it was, then the company must have assumed that, to the end that it might be saved something like $2,000, Thomas was willing, without any consideration, to give up his project of subsequently constructing a road of his own from his sawmill to the tract of timber he had previously purchased. If the company had no thought save to build its line as cheaply as possible, it simply overlooked the fact that cheap construction is not always calculated to give the best results in the
Our attention has been directed to several prior adjudications by this court in cases where the doctrine of equitable estoppel was successfully invoked. See City of Atlanta v. Gas Light Co., 71 Ga. 107; Mayor &c. of Athens v. Georgia Railroad, 72 Ga. 800; Georgia Pacific Ry. Co. v. Strickland, 80 Ga. 776; Southern Marble Co. v. Darnell, 94 Ga. 232. A casual examination of these cases will suffice to show that not one of them presented a state of facts having any marked similarity to the condition of affairs disclosed by the record now before us. It may be that the doctrine of estoppel lurks behind some of the facts of this case; but if so, it attaches itself to the conduct of the Perkins Lumber Company with respect to allowing Thomas to go to expense and trouble, and not to his conduct in permitting that company to construct its road over the route it selected.
Judgment affirmed.