19 Ga. 89 | Ga. | 1855
By the Court.
delivering the opinion.
In this case, we assume that the answer is true.
The answer says, in substance, that the complainant gave-to the defendant the right to open two public streets through, his land; that the defendant, in the exercise of this right,
■ The first question therefore is, whether the defendant has this right ?
The gift, by the complainant to the defendant, was that of the right of way over his land. It was no more than that. .
Is a gift of the right of way a gift of the earth, rock, trees, and other materials which may happen to exist within the boundaries of the way ? Is a gift of the right of way a gift of all the gold that may exist beneath the surface of the way, the right to which is given ?
In Goodtitle ex dem. Chester vs. Acker and Elmes, (1 Burr. 143,) Lord Mansfield said: “ 1 Ro. Abr. 392, Letter B. Pl. 1, 2, is express, e that the King has nothing lut the passage for himself and his people; but the freehold and all profits belong to the owner of the soil.’ So do all the trees upon it and mines under it (which may be extremely valuable.) The owner may carry water in pipes undmf it. The owner may get his soil discharged of this servitud eí'-' or easement of a way over it, by a writ of ad quod damnum.”
And in Lade vs. Shepherd, (2 Str. 1004,) which was an action by the owner for trespass done bythe appropriation of a part of a street which he had laid out on his land, the Court •say, “It is certainly a deduction to the public, so far as the public has occasion for it, which is only for a right of pas■sage. But it never was understood as a transfer of the abso-1 lute property in the soil.”
To the same effect is 2 Inst. 705. (See Woolvych on Ways, 5.)
[1.] A gift, then, of the right of way, is not a gift of the earth and other materials that may exist within the boundary lines of the way, the right of which is given.
The next and only other question is, whether the complainant had the right to an injunction to stop the defendant from taking rock from “the rocky bluff” aforesaid, and applying it to the uses of the City of Rome in macadamizing streets and building culverts ?
[2.] And we think he had. Taking rock for the purpose .of applying it to the uses aforesaid, would amount to the. commission of waste. (Com. Dig. Wast. (D. 4.) And an •injunction to stay waste, has become almost a matter of ■course. (Moore vs. Ferrell et al. 1 Kelly, 11; Eden. on Inj. 198, -9.)
We think, therefore, that an injunction to prevent the defendant from taking the rock, to be applied to the uses aforesaid, should have been granted.