68 Ga. 539 | Ga. | 1882
The powers of chancery are invoked in this case to enjoin the Macon and Brunswick Railroad Company, in the hands of its present management, from extending its track from Macon to Atlanta through Rose Hill cemetery, in the former city. The injunction was denied by the chancellor, and complainants, who are private owners of certain lots in the cemetery, except to that judgment and assign it for error in this court.
Substantially we think that the terms were complied with, and if they were not in mere particulars, not of vital consequence, that fact would not operate to render void the sale, at the instance of private parties especially, so as to prohibit the company from going on with the road, the state not interposing at all, but having received part of the purchase money, and being equitably bound, to refund it before she herself could well set the sale aside.
She has virtually acquiesced in it, not only by the acts of the governor, but of subsequent legislatures.
We think it clearly established by our own adjudications, without reference to other authorities, that the state, though it may have dedicated property to one public use, by the exercise of its right of eminent domain, has the power to' dedicate a portion of the same property to another public use, not inconsistent with and destructive to the first use. The doctrine has been applied to country roads and streets, where grant's to railway companies to use portions of such public ways have been upheld, especially with the consent of the public authorities, over the particular ways, and without regard to objection of private persons. 43 Ga., 201; 44 Ib., 547; 45 Ib., 602; 50 Ib., 451.
We cannot see that their particular lots are in any wise injured by the contract. The general government and ornamentation of the cemetery is for the city. She may not injure the private property of any lot owner therein, but it is for her to lay off avenues and cut down or plant trees and shrubbery for the general beauty of the whole, and to adopt measures for its security ; and it will not do to hold that two or three, or a hundred, lot owners have the right to appeal to the courts and stop her in such preservation and ornamentation.
The contract between the city and company had been long made; the line towards the cemetery laid off; money expended thereon in rights of way and other purposes; the road-bed actually laid or graded on a portion of it, before complaint was made.
The principle that to the vigilant, and not to the sleepy, equity opens her portals is applicable here, and ap. plies with sufficient force always to close her doors when by rea son of that sleep the adverse party has expended money and 1 abor, thinking that nobody interested would oppose the right to complete what had been commenced in the confidence which non-action by everybody interested had engendered.
Judgment affirmed.
Cited for plaintiffs in error : 6 How. R., 507; 7 Ib., 185; Pierce on Railroads, 154-5-6; 21 Am. R., 643; 57 Ill., 363; 43 Conn., 234; 53 N. Y., 575; 20 Hun, 201; 12 Ga., 239; 43 Conn., 234; 33 Ga., 601; 47 Ib., 565; 49 Ib., 476; Code, §2223; High on Inj., 139, 140, and note; 12 Ga.,
For defendants: Acts 1878-9, p. 115; Fort’s Comp., p. 53; 8 Ga., 228; 17 Ib., 29; 20 Ib., 797, 802; 46 Ib., 350; Code, §§2360-61; 5 Ga., 22: 6 Ib., 458; 25 Ib., 374; Field on Corp., 71; Fort’s Comp., pp. 21, 50, 53; 43 Ga., 200; 44 Ib., 547; 45 Ib., 602; 51 Ib., 451; 23 Ohio, 510; 6 How., 507; 13 Ib., 71; 17 Conn., 196; 3 Bland (Md.), 442; 24 Iowa, 455; 8 Dana, 289; 14 Gray, 93; 10 Min., 82; 31 Md., 180; 10 N. J. Eq., 352; 36 Penn., 99; 7 Ind., 479; 18 Barb., 222; 3 Head, 596; 22 Vt., 458; 33 Mo., 128; 25 N. Y., 526; 1 Redf. on R. R’s, 268; Const., 1877, Sup. to Code, 575; 39 Md., 631; 66 Penn., 411; 42 Ib , 132; 46 N. Y., 503; 5 Am., 377; Acts, 1835, p. 226; 50 Ga., 451; Code, §§2997-8, 4094; 59 Ga., 190; 54 Ib., 29; 13 Barb., 646; Acts of 1847, p. 36; and Record, pp. 5 and 7.