State ex rel. Habersham v. Savannah & Ogechek Canal Co.

| Ga. | Jan 15, 1859

By the Court.

Benning, J.

delivering the opinion.

The first question is, was the Court below right, in overruling the motion for a nonsuit ?

That the Court was, if the evidence was such that it might authorize the jury to find, that it was the duty of the Canal Company to build the bridge; and if mandamus was the remedy, is clear.

The road was either a public road, or, a private road.

If it was a public road, it was clearly the duty of the company, to build the bridge — a duty imposed by the Act of 1833, amendatory of its charter, which Act says; “That whenever the said canal shall intersect a public road, the said corporation shall be bound to build a safe and suitable bridge.”

[1.] And there was evidence sufficient to authorize the jury to conclude, that the road was a public road. There was evidence to prove, that it was in use as a public road, in 1795, and, that it continued so, down to the time of the digging of the canal, which was about 1830. How long before 17.95, it had been so in use, does not appear. From a public use so long continued as this, the jury would be at liberty to infer a grant of the use to the public. Williams vs. Turner, 7 Ga. 348.

There was evidence, then, which would, authorize the jury to find, that the road was a public road; and therefore, which would authorize them to find, that it was the duty of the company to build the bridge.

If the road was a private one, it was the duty of the company to build the bridge, provided, 1st, they agreed to do it; or 2dly,th.e law was that they must do so, agreement or no agreement, unless they had, by something, obtained an exemption from the duty — as, by a release, or the statute of limitations.

There was evidence from which, the jury would be authorized to infer such an agreement.

Mr. Hunter swears, that Mr. Telfair told, that he had given to the company, “the right of way upon condition that they would build and keep up the bridge.” This evidence was in, and therefore, to credit it was the right of the jury-

The company did build and keep up the bridge, in Mr. Telfair’s lifetime.

Frequent applications were made to them, by the successors to Mr. Telfair’s rights, to build the bridge, and it does not appear that the company in reply to these applications, took the ground, that if they were under obligation to build the bridge, they were under none to them to do it. On the contrary, it appears, that the company conceded to the Telfairs, the right to have a road parallel to the canal. Would they have done this, unless there was some agreement or understanding by which, they were under a duty peculiar to the Telfairs.

There was, then, evidence from which, the jury might have inferred an agreement to build the bridge.

Was there any evidence of the existence of any thing by which, they had obtained a discharge from this agreement?

There was no evidence to show, that any proceeding under the 12th section of the charter, had taken place; that section which provides a mode by which, the company might obtain the “lands,” &c., which they might need. And even if this were not so, it can hardly be true, perhaps, that that section applies to the case of mere easements, such as is the right to use a road.

True there was proof of an application on behalf of the Misses Telfair, to the company, to build a bridge, or for “ permission to have a road adjacent to the canal, and parallel with it, so as to enable them to use the bridge lower down;” and,proof, that permission to have such a road, was given, and that such a road was opened and used, till the canal went dry.

Blit 1st, the jury would be at liberty to conclude, that it would be a straining of these facts, to make them amount to' a release on the part of the Telfairs, of their right to a bridge; and, to a conveyance on the part of the company, of their right to the use of the land, covered by this road; when it might as well be that no more was meant by the facts, than to make the parties, respectively, tenants at will of each other.

2dly, conceding, that these facts do amount to such a release of the right to a bridge, yet the evidence shows, that the .canal went dry — went into “disuse,” in 1838, or thereabouts ; and, that, thereupon, trie old use of the road over the bed of the canal, was resumed by the Telfairs and the public; and, that this resumed use, continued until 1855, and for most of the time, with the bed of the canal dry.

Now when a road or other way, is abandoned, the right of way, returns to the owner of the fee.

At least, it does, if the owner of the fee, has used the land, for seven years and upwards, as his own.

Indeed, the use of the land for a road, by any one for seven years and upwards, wonld, according to the case aforesaid, in 7 Ga., give him the right so to use it.

The evidence, then, about this affair of the road that was to run parallel with the canal, is not such that it would require the jury, to say, that it discharged the company from their agreement to build the bridge, supposing there was such an agreement.

It is also true, that the company further rely on the statute of limitations, as giving them an exemption from such agreement, if an agreement existed.

Then was the evidence such as to require the jury to believe, that the company had had adverse possession of the part of the road cut by the canal, to.the stoppage of travel on that part ? The evidence was, the reverse. It was, that, at first, the .company put up a bridge; that the bridge stood till about 1838; and that about that time, the canal went into disuse, and became dry, and (he bridge fell down or was removed and the use of the old road across the canal-bed, was resumed by the Telfairs and the public; and, that this use of the road, continued until 1855, most of the time, with the bed of the canal dry; and, that in 1855, the slopes to the banks, were filled up, and thus, the road rendered impassable.

Now, during the time of the bridge, there was no such adverse possession of the road to the obstruction of travel, for during that time, the bridge itself served in place of the part of the road over which it stood — the bridge itself was indeed to be considered, as that part of the road. At all events, the bridge was an admission of the duty to build a bridge, and so it could not be evidence of the assertion of a right adverse to that duty. And, during the subsequent time, fifteen or eighteen years, there- was no exclusive possession of any sort in the company, but the possession was in the Telfairs and the public, for they used the canal-bed corresponding to the place of the old road, as a road, in the same way in which, they had used the old road, before the making of the canal.

According to the evidence, then, the adverse possession was, if any thing, the other way. The Telfairs and the public were holding adversely for fifteen or eighteen years, for a period running up to within a year or two of the commencement of the present suit.

It turns out, then, that there is, in the evidence, nothing which would have required the jury to believe that any matter existed, to give the company a discharge from'their agreement with Mr. Telfair, supposing, the jury should conclude, as they might from the evidence, that such an agreement existed.

Then the evidence was such, that it would have authorized the jury to conclude, that it was the duty of the company, under an agreement, to build the bridge.

3dly. But even ifthere was not any evidence of such an agreement, yet if the law itself was, that the company must build a bridge, though the road might be only private, it was their duty to build the bridge, unless there was something to exempt them from the duty.

[2.] It was the law, that they must build a bridge, if their canal was such as to obstruct the road, and prevent its use as a road, and the Telfairs had the right to use the road.

Such an obstruction is a nuisance. “ If I have a way annexed to my estate across another’s land and he obstructs me in the use of it, either by totally stopping it or putting logs across it, or ploughing over it, it is a nuisance.” 3 Black. 218.

The canal, after the slopes in its banks at the road, had been filled up, did become an obstruction to the road.

The evidence was such as to authorize the jury to find, that the relators did have the right to use the road; for it was such as to authorize the jury to find, that the whole pub-lie had this right. It showed the road to have been in public use for some thirty years and an indefinite time previously.

But if they had the right to use the road, then it was the duty of the company, not to obstruct the road and thus prevent that use, but, to leave the road as it was, or if not, to put something as a substitute for the part they appropriated. And a bridge is the only thing that would at all answer for such substitute, and even it would not be equal to thatwhich it would take the place of — the solid earth.

There was nothing in the evidence, to excuse the company from the performance of this duty thus imposed by the law. The license for the road parallel to the canal, the plea of the statute of limitations, were no more sufficient, to excuse them from this duty imposed by the law, than they were found to be, to excuse them from the duty imposed by the agreement with Mr. Telfair, if there was an agreement with him.

Thus then, it appears, that there was evidence sufficient to ■ authorize the jury to believe, that the road was a public road; 'in which case, the charter itself makes it the duty of the company, to build a bridge — and, evidence sufficient, if it was a private road, to authorize them to find, 1st, that there was an agreement by which, it became their duty to build the bridge ; and 2dly, that, even without an agreement, the law itself imposed the duty on them to build the bridge.

There was then, a plenty of evidence to authorize the jury to believe, that this duty existed.

And this brings us to the question, supposing the duty to have existed, was mandamus the remedy.

[3.] We think it was the remedy.

1st. No other, remedy is adequate. Damages might, perhaps, do for the past, but they are not adapted to the future. The obstruction will still remain. Really, however, the injury is manifestly, of a kind which it is impossible to measure, with any approach to certainty, by damages. And when there is no other adequate remedy, mandamus lies.

2dly. Mandamus has been actually employed for abating nuisances. Tapping on Mand. 171.

It appears then, that both of the things assumed hypothetically at the outset, existed — it appears, first, that the evidence was such, that it might authorize the jury to find, that it was the duty of the company, to build the bridge; and secondly, that mandamus was the remedy. It follows, that the case was one, in which it would have been wrong, to grant a nonsuit.

This disposes of the first exception, which was, to the refusal of the Court to grant a nonsuit. The next and only other exception was to the refusal of the Court, to grant the motion for a new trial.

All the grounds of that motion, but two, are involved in the motion for a nonsuit; and consequently they have been disposed of, in the disposition made of that motion. Of the two, one is, that the jury found against a part of the charge of the Court, the part which told them, that when the statute of limitations began to run, it never ceased to run; and that it began to run from the time, respondents refused to build the bridge. The Court itself became satisfied that this charge was wrong, and so said in refusing this motion.

And we think it was wrong, as must appear from what has been already said.

The refusal referred to was made, probably, at a time when there was a passage way across the bed of the canal; and that, and not an intent to claim adversely, m ay have been the reason of the refusal.

3dly. But if this is not so, yet the use of the road over the canal-bed, by the Telfairs and the public, for fifteen or twenty years, would, not only stop the running of the statute in favor of the company, but would set it to running against them.

There is nothing then in this ground.

The other is, that the jury found the return to the rule nisi, "false,” although, there were some things in that return¡ that were not false.

. The late statute requires the verdict to be in this form. And its meaning, doubtless, must be, that if the material parts of the return are false, i. e., the parts material to the defence, then the verdict must be, “ false” generally, although there may be some things in the return that are not false. Any other meaning would render the statute not only absurd, but impracticable. There will probably never be a return in which every thing will be false.

VVc think, then, that there is no merit in the exception to the refusal to grant a now hid, and therefore we affirm both of the judgments excepted to.

Judgment affirmed.