Wrightsville & Tennille Railroad Co. v. Holmes

85 Ga. 668 | Ga. | 1890

Blandford, Justice.

This was an action brought jointly in the name of Holmes and his wife, for the use of Hightower, against the plaintiff in error. Considering the declaration, we think it was an action brought for damage to the freehold of the plaintiffs. The case is so afflicted, and abounds with so many complaints, that it is somewhat embarrassing to know or to tell where to commence the decision. The evidence for the plaintiffs shows, and without contradiction, that the formal legal title was in Holmes, while the equitable title was in his wife ; that Holmes bought the property at sheriff’s sale with the money belonging to his wife. The deed of conveyance was taken to Holmes, so a trust would thereby result to the wife. But the action is brought jointly in the name of Holmes and his wife, and under the testimony in this case it is clearly shown that there is no joint title in Holmes and wife. Therefore it would seem, without’more, there could be no recovery by the plaintiffs in this case. Again, the testimony shows that Hightower, at the time the railroad was located upon the land (by which location the damages are alleged to have accrued to the plaintiffs), was a director, or one of the directors, in the railroad company and participated in the location of the road. He afterwards purchased this land and took a bond for title, and this suit is brought for his use. The court held that, notwithstanding this, he was not estopped from recovering. We are of the opinion that if these facts be true, there could have "been no recovery for the use of Hightower. No man can induce a trespass to he made upon the lands of another and afterwards purchase the lands and recover damages for such trespass. It is complained that the court erred in allowing a certain contract to be given in evidence upon the trial of the case between this railroad company, the Central Railroad Company, and the Oconee Boat Company, as is set out in the record. "We do not see w3^,t this contract, entered into between these companies, had to do with this case, or how it could illustrate any issue between the parties to this case. We think, therefore, that the court erred in admitting this testimony. A certain deed of conveyance from Holmes to the plaintiff in error had been put in evidence, which conveyed to the railroad company a right of way over the lands of Holmes; and it was shown that Holmes, at the time he made this deed, never disclosed any interest of his wife in these lands. The court below held that if this deed conveyed to the railroad company the right to locate its line, and to establish its wharves and buildings where they were established, yet, if this was done to benefit any other company, then this right was not conveyed by the deed. We think this instruction to the jury was wrong. If in fact the railroad company had the right to locate its road and to establish its wharves and buildings where it did, under the deed of conveyance of Holmes to the company, then neither Holmes nor any one else would have a right to complain that this was done by the railroad company for the advantage or advancement of any other transportation company. It is also complained that the court erred in admitting testimony, over the objection of plaintiff in error, to show what would be the value of wharves which could have been erected by Hightower upon the river bank; what would have been the value of a bridge at that point per day, per week and per year, if the same had been built by Hightower over the river; and various other testimony of this character. "We think this testimony should have been rejected by the court. If the railroad had no right to locate its railroad upon this land, to cut dowxx the timber, or to establish its wharves and buildings where it did, then the only question is, what damage was done to the freehold thereby ? If this was a trespass on the part of the railroad company, what yas the condition of the land at the tixne the trespass was committed, and how much did such trespass injure the land ? The court could as well have admitted evidence to show that Hightower could have built a hotel on this land, and that it would have been worth so much per day, per week or per year’, as to admit 'the testimony which he did. Under the allegations ixx the declaration, such testimony was foreigxi to the issues raised in this case, and should have been rejected by the court. This is all that we think is necessaxy to be said in this case; and the judgment of the court below is Reversed.