160 Ga. 407 | Ga. | 1925
(After stating the foregoing facts.)
An ordinance to vacate portions of Spring and Bartow
The next question is whether the agreements of 1893 and 1914 are still of force and effect. More exactly the question is
This brings us to consider the contention of counsel for the plaintiffs that the plaintiffs have acquired the right to use the entire yard or court lying between the depot buildings of the railway company and the property line of abutting owners of property on said court as a public street; and that the railway company can not, without first obtaining permission from the city, lay its tracks diagonally across said street for use in the transaction of its business as a common carrier. The trial judge was authorized to find from the evidence that this entire court or yard had been constantly used by the public for the purposes for which a street is generally used from 1893 until 1924, and that it was one of the busiest and most traveled highways in the city. In view of this situation the plaintiffs assert that the railway company dedicated the same to public use as a street, and that the same had been so used for such a length of time that the public accommodation and private rights would be materially affected by an interruption of its enjoyment, and that for this reason the railroad company could not afterwards appropriate it to use in the conduct of its business as a common carrier. It is true that if the owner of lands, either. expressly or by his acts, dedicates the same to public use, and the same is so used for such a length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, he can not afterwards appropriate it to private purposes. Civil Code (1910), § 4171. In passing upon this contention we deem it unnecessary to discuss the question whether the public can acquire by use the right to a street located longitudinally along the right of way of a railroad company, or over its terminal property, which is used to afford the
By the agreement of 1893 the company agreed to open a yard-driveway, not a street, along the front of its buildings from Bartow Street across Spring Street to its property line nearest Forsyth Street, this yard-driveway to be fifty feet wide. The company expressly reserved for its own exclusive use the twenty-five feet of said driveway next to its depot building. Clearly there was no dedication to public use of this strip of said yard or driveway. The company expressly agreed to “allow .the public the use of the twenty-five feet in width” of said driveway “farthest from its said building.” This was an express grant of a driveway over this strip for use by the public. There was likewise an acceptance of this grant of a driveway by the city. The grant became effective immediately, and the right to use this driveway was not dependent upon use by the public thereof. As to this strip the public have the right to use it by virtue of the grant by the, railway company to the city. The right of the public to use this driveway was not merely permissive, and is not revocable by the railway company at its pleasure. The grant of this right was for a valuable consideration. The railway company ought not to be permitted to retain the fruits which it got under the contract of 1893, and to deprive the public of the right to this driveway, which was the fruit which they got under this contract.
This brings us finally to consider the extent to which the plaintiffs can make use of this court or yard and the rectangular tract of land involved in this case. As to the strip twenty-five feet in width next to its building, the railway company is the owner and is entitled to its exclusive use. As to the strip of twenty-five feet next thereto which the company granted to the city as a driveway, the plaintiffs and the public have the right to use the same as a driveway. The plaintiffs likewise have the right to use the private way granted to them by the railway company under the contract of 1914. The railway company is the owner of all the remainder of said court or yard, and is entitled to use the same as one of its terminal instrumentalities in any way it may see fit, not inconsistent with the discharge of its duties to the public as a common carrier.
The effect of the grant or dedication of land to public use is not to deprive the owner of his title thereto. He retains the exclusive right in the land for every purpose or use which is not
Judgment reversed.