76 Ga. 644 | Ga. | 1886
Application-was made by the relators to file an information in the nature of a quo warranto against the respondents, calling upon them to show by what right they exercised-the’franchise of using a public'bridge as their private property, and erecting gates and charging toll for crossing the same. The application was granted and the information-.was filed by the solicitor' general. Both the application and information were demurred to, and the demurrers overruled,- and respondents excepted. The information was then answered on the merits; no issue was made on the answer, but on the facts as made by the pleadings, the answer'included, the judge decided in favor of the relators and granted the writ of ouster, and respondents again excepted.
Thus three points are made: first, is the application demurrable ? Secondly, is the information demurrable ? And thirdly, is the judgment of ouster right ?
The facts therein exhibited are that on the 14th of March i 1819, the court of ordinary established a public road running from a church to this bridge across the Chattahoochee river, and on'the same day, that court established another public road from the opposite side of the bridge to the city of Gainesville; that these roads were opened and worked, and traveled ever since as public roads; that the relators with .other citizens by private subscription built the bridge and the public used it as a public bridge from
So that the case made is that a bridge was built over the Chattahoochee river by private subscription, and oh its being built, or simultaneously with the erection, a public road from a certain church to Gainesville was authorized and established by the ordinary, and opened and used by the public in common with this bridge from its erection in March, 1879, to July, 1879, when this alleged usurpation took place; the ■ gates were erected to prevent the public from passing over the bridge ■ freely and without toll, and they were so prevented unless the toll wás paid.
' In such a case, we think that the information in' the nature of a quo warranto does lie, and the petition therefor was properly and legally considered, and the prayer to show cause granted according to law. 3 Blackstone’s Com. (Ohitty), 263 ; 4 iíZem,-312, 441. There it is said by the eminent commentator that the “ writ of quo war. rant.0 is in the nature of a writ of fight for the king against him who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim in order to determine his right; . . . being a writ commanding the defendant to show by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse.”
Afterwards, by the effect of the decision on quo war. ranto being final without new trial or appeal, the information in the nature of the writ of quo warranto, being a wider and less arbitrary proceeding, took'its place, and is “ applied to the mere purpose of trying the civil right, seizing the franchise or ousting the wrongful possessor.”
Thereupon the court entered the following judgment:
“ Whereupon it is considered, ordered and adjudged that the re*650 spondents, Davis "Whelchel, R. E.-Green and-A. G. Whelchel, having failed to show any charter, license or other sufficient authority to demand, collect or receive toll for the privilege of crossing .the bridge mentioned in the pleadings, be, and they are hereby ousted of the right or privilege' of charging', demanding or collecting toll in any manner from persons for -crossing said bridge.”
And the question is, is this judgment right? !
It unquestionably is apparent from this entire record that the two public roads ierminaling at this bridge were really but one public road for public use to the county site of Hall county, the city of Gainesville, from Harmony Grove church and that portion of the county of Hall; that t his road was established and opened for a public road a-free public road; that the bridge was erected at that time, and without it the public use of the road, and there-' fore the road itself as a free public road, was virtually destroyed ; that people had contributed to build'the bridge; that they did'not have or raise enough to build it or pay for it-; that'certain 'persons,--—by what authority is not shown, except that of the'land-owners,—completed it by hiring a man to-buildit; that this man got a lien on it,—by what law or as against what lawful owners of the bridge, is not shown; that three persons bought his lien, and sued these relators and another, and got judgment, by virtue'of which the bridge was sold and respondents bought it.
Thus it is clear that they fail to show any' charter Or license to close this bridge by a gate and exact toll, and the court below was clearly right in so adjudging. Do they show any other lawful authority to exercise this franchise ?
The act of 1850 (Cobb’s Digest, p. 958, codified in section 684) grants authority to the owner of any land through which a stream may pass, on both sides thereof, to establish a ferry or bridge and charge toll. But the act should be construed strictly, and cannot be extended to embrace any man who buys the right to land a bridge or abut it on both sides of the' river. It is a mere privilege given the owner to pass, from one side of the river to the other
When not the owner of both sides of the stream, and when possessed of no legislative grant, and when he has no license from the' ordinary, one who exercises such a franchise or privilege does it without lawful authority; and on an information in the nature of a quo warranto, he will be ousted from the exercise of the privilege upon a bridge, or causeway, or ferry, or turnpike on a public road, or connecting two public roads over a stream, thereby making one public road from a section of the county to the site of the court-house thereof.
Such being the law under o.ur own statutes, it becomes unnecessary to look elsewhere for law-upon the facts which this record discloses.
Judgment- affirmed..