Atlanta & West Point R.R. Co. v. Atlanta, Birmingham & Atlantic R.R. Co., 125 Ga. 529 (Ga. 1906)

Atkinson, J.

1. The affidavit which was excluded as evidence, to which exception is taken by the first ground of the cross-bill of exceptions, is not relevant or material. There was nothing in the ease to have justified the court in finding that there was any damage to the plaintiff independent of the taking. If there was actual taking, it could not lessen the plaintiff’s right to a recovery of his property which was wrongfully taken by showing an enhancement of values of adjoining property. For the reasons stated, the court did not commit error in excluding from evidence the affidavit mentioned.

2. Belative to the description of the one-acre tract mentioned in the Towns deed, counsel for plaintiff contend that the description is-sufficient, and in support of their position cite Gress Lumber Co. v. Coody, 94 Ga. 519; Vaughn v. Fitzgerald, 112 Ga. 517. Counsel for defendants contend that the description is insufficient, and cite Luttrell v. Whitehead, 121 Ga. 699; Pitts v. Whitehead, 121 Ga. 704; Crawford v. Verner, 122 Ga. 814; Priester v. Melton, 123 Ga. 375; Tippins v. Phillips, 123 Ga. 415. The Towns deed is good either as a convejunce of title to the one-acre tract, or as color of title thereto, if the descriptive recitals are so definite as to render the tract capable of being located. This proposition is supported by all of the cases cited both for the plaintiff and the defendant. The cases also support the converse of the proposition;

that is to say, if the description is so indefinite that the land is incapable of being located, the deed is inoperative, either as a conveyance of title or as color of title. Let us try the deed and see if it will stand the test. In the first place, the deed definitely describes a larger tract as “the whole tract of land owned and claimed by the said J. LI. Towns, situate, lying, and being in said county, adjoining lands of Poythress, Cutwright, and Turner, being a town lot in LaGrange whereon said Towns now resides.” From this description it is an easy matter to locate the larger tract of land, because it is the “whole” tract in LaGrange, Georgia, whereon James LI. Towns then resided, and which he then owned and claimed, and which joined lands of Poythress, Cutwright, and Turner. With' an entire tract thus located, we next look to a further descriptive fact, namely, that' a right of way, 200 feet in width, “to extend in length through the whole tract” just described, was convejred, the right being given to the railroad company of running said right of wajr “in such direction through said tract” as the agents of the company “should think best suited for the purposes of locating and establishing their said works.” Under the principle that that is certain which can be máde certain, this became sufficient as a conveyance of a right of way through said tract, and confined to such particular part thereof as the agents-of the company should see fit to adopt as the route over which to go, and became operative as a conveyance as soon as the right of way was thus located. Gaston v. Gainesville Ry. Co., 120 Ga. 516. We now look to the next descriptive fact: When the-'right of way through the entire tract becomes vested and fixed, the deed provides, for the conveyance of “one acre of land on the northwest side of the right of way limits.” Under the rulings made in the two cases cited by the plaintiffs, supra, and in Hanly v. Blackford, 1 Dana, 1, 25 Am. Dec. 114, the one acre must be carved out of the larger tract so as to extend.along the line of the right of way for the full limit of the right of way through the larger tract. Thus far we have tire right of way as the boundary of the one acre on the one side, and the two boundaries of the larger tract on two of the other sides. There remains to ascertain the boundary of the one acre on the remaining-side. By the language of the deed, the location of the remaining line is* to be ascertained by drawing a line parallel “to the street running south from Herring’s tavern,”

at such distance from the right of way as to enclose one acre of land. Thus we see that the right of way of the railroad bounds this one acre on the southeast side; that the outside boundary lines of the whole tract bound it on the north and northeast and on the south and southwest sides, and that the last line is ascertainable by drawing a line parallel with the street running south from Herring’s tavern at such distance from the right of way as would make the enclosure contain one acre. The street running south from Herring’s tavern had a definite and fixed course, and there could be no speculation as to where this line should be located after the right of way was once selected. This description we regard as definite, thorough, and complete, and entirely sufficient to operate as a conveyance of the one acre lying within the boundaries mentioned. As to whether that acre covers any part of the land now in dispute is another question which must be settled by other evidence. From what has been said, it follows that the court did not commit error by admitting the deed in evidence.

3. The objections urged to the blue-print plat attached to the affidavit of the witness Seib, and likewise to the language of. Seib, whereby the witness deposed, among other things, substantially that the plat indicated the location of the one-acre tract described in the Towns deed, and that the said acre embraced a portion of Morgan street, over which the defendant proposed to construct the railroad, are untenable. The witness testified that he knew the location of this property, and that the map was a true representation. His information may or may not have been well founded in fact, and is open to be rebutted either by cross-examination or other evidence; but it was unnecessary for the witness to depose anything further in order to render his affidavit admissible in evidence. Its weight was a question for the .chancellor hearing the case, upon questions both of law and fact.

4. There was no error in excluding part of the affidavit of Boy Dallis upon the ground that it was irrelevant and .immaterial. The Towns deed clearly indicated .the manner in which the boundaries of the one-acre tract should be ascertained, and that fact prevents the excluded evidence from being material to the question at issue. i

*5.* Upon consideration of other grounds of error urged in the cross-bill, it was ascertained that the Towns deed was not void for

uncertainty, and that the same was admissible in evidence. There was no other objection urged thereto, and there is nothing to indicate that it is illegal in any particular. There was evidence to show that Morgan street was located upon the particular acre of ground which was conveyed by the Towns deed, and also upon the land conveyed by the Poythress deed. The Poythress deed and the Towns deed were each good as color of title, and the evidence showed that from 1853 up to the time of the institution of the suit the plaintiff was in actual possession of some part of the property described in both deeds, and in constructive possession of the whole, continuously, openly, and notoriously. There was also evidence to the effect that not until as late as 1882 was Morgan street laid out or used as a street at the place where it is now established. It follows, therefore, that there was sufficient evidence to enable the court to hold that before the acquisition of an easement by the ■city over this property within the limits of Morgan street as now located thereon, the plaintiffs had acquired prescriptive title to the property. This being true, it was unnecessary for them to show title in either Poythress or. Towns. The cóurt takes judicial cognizance of the fact that the plaintiff, the Atlanta & West Point Railroad Company, is the successor by legislation of the Atlanta & LaGrange Railroad Company; consequently, it is unnecessary to show a deed between those two corporations conveying the property to the latter. Upon what is said, we hold that for none of the reasons mentioned in the 6th and 7th assignments of error in the cross-bill did the court commit error in either of the rulings in those assignments mentioned. We do not mean to hold .that the ■evidence demanded any such finding. On the contrary there was evidence in behalf of the defendant tending to show that the place now occupied by Morgan street had been used as a highway before the railroad was constructed, and had been maintained as such; and had the court found in favor of that contention, we would not have disturbed its finding.

6. We now come to a consideration of the main bill of exceptions. It is alleged that it was erroneous for the court to refuse the injunction, for the reason that the plaintiff was the owner of the fee in and to Morgan street, over which the defendant proposed to construct and operate a steam commercial railroad without the consent of the plaintiff and without first having paid the plaintiff therefor,

and without having condemned the property in the manner provided by law, it being declared that such use of the property by the defendant under the circumstances just enumerated amounted to a taking of plaintiff’s property without due process of law, and that the same was violative of those clauses of the constitution of this State which declare: “Private property shall "not be taken or damaged for public purposes without just and adequate compensation .being first paid,” and, “No person shall be deprived of life, liberty, or property, except by due process of law.” The court found as a matter of fact, that the fee to the property was in the plaintiff, and that there was imposed upon it an easement in the nature of a public street which had been acquired and established in favor of the City of LaGrange for the benefit of the public as a highway-for the purpose of traveling thereon by persons with their vehicles. TJpon these facts the court found as a matter of fact, that, without the consent of the plaintiff, the defendant, having obtained the permission of the city to use this particular street, and the authority from the State to run through any of the streets of the City of LaGrange, had the right to construct and operate its railroad for the purpose of operating thereover a steam commercial railway engaged as a common carrier of freight and passengers along the line of the street, and without payment to the plaintiff, on account of his ownership of the fee in the property for his interest therein. The main question presented by this ruling is the determination of whether or not, under these circumstances, there was a taking of the plaintiff’s property by the defendant. For a fair discussion of this 'question we will deal with Morgan street, along which it is proposed to construct and operate the line of railway, as if it had been finally determined that the fee, subject only to the public easement, is in the plaintiff, and that the public easement as for a way of passage by the public generalty, either with or without vehicles, had been imposed thereon, and is now in full enjoyment of the public. The easement arose by implied dedication, but that will not affect the case. It is sufficient that there was a dedication for the general public. Being implied, it follows, as a matter of course, that there are no express limitations as to the character of the use which would restrict the public from any of the legal inodes of enjoyment. It goes to the public, therefore, as a public way of passage in the broadest sense. From this standpoint what are the

respective rights of the plaintiff as owner of the fee as against the defendant as a member of the public, who is attempting as such, by authority of the State and contract with the City, to use the street in the manner proposed ? The case must turn upon whether the proposed use falls within the pale of the easement. If so, that concludes debate, for the plaintiff, having by dedication authorized the use, could not be held to deny that which he had granted. If the use does not fall within the pale of the easement, the defendant could not look to the easement as a justification of his use, and his act of appropriation would, as against the owner of the fee, be wrongful. It would not only be wrongful, but, under authority of Elliott on Roads & Streets (2d ed.), §§201-212, it would be such a taking as the constitution prohibits. Such taking is generally referred to in the books as, an additional servitude, which is 'no more or less than a use of a highway in a manner not authorized by the act of dedication. “A highway is a public way -open and free to any one who has occasion to pass along it on foot or with any kind of vehicle.” See title, “Highway” in 4 Words & Phrases Judicially Defined, 3291; also Southern Ry. Co. v. Combs, 124 Ga. 1004. It is the generic name for all kinds of public ways, including,‘among others, roads, streets, and alleys. No matter whether obtained by prescription or 'dedication or under, the right of eminent domain, it is a highway if there is a general right to use it for travel. Elliott on Roads & Streets (2d ed.), §§ 1, 3. “A street is a highway in a city or town used by the public for the purpose of travel, either by means of vehicles or on foot.” 7 Words &* Phrases Judicially Defined, 6684, title “Street.” Prom the definitions given, we are justified in regarding a street as a public way in a town or city open and free to any one who has occasion to pass along it on foot or with vehicles. It will be observed that there is no restriction as to the person, because, in order to be public, it must be free to every one. Nor is there restriction as to the kind of vehicle to be used as a means of conveyance over the street, other than as qualified by the implication-that no kind shall be used which within itself, or which by the manner of its use, shall interfere with the general public in their enjoyment of the right of travel over the way. There is no restriction as to the purpose of the use. It may be for pleasure or business ór for any cause for which occasion may arise. All streets are, of course, within the

'police regulation of the several municipalities, but, except as controlled by that regulation, there is nothing in the nature of a street to prevent its free use as a way of passage by all people in alf of the modes which are not exclusive but which are consistent with the general public use. A given street may be a greater necessity to those people residing in the immediate vicinity, but it could not be limited to their uses, because the limitation would at once destroy the public feature of the way, and it would cease to be a public street. For the same reason it could not be restricted to use for the purpose of pleasure or business or any necessity. The nature of the right demands that it be open for all purposes. It may be a driveway for carriages or a footway for pedestrians or a wagon-way for hauling loads or for numerous other similar purposes. For these uses it may be of more frequent use and of a greater necessity to those living in the immediate vicinity; but the idea of a public way would not be complete unless the same way were submitted to like uses by other members of the public more remote, who may desire to pass'over the way either in coming to the particular vicinity or in passing through to some other place. It is essential to the happiness and well-being of society that avenues of passage be established for the use of the public from place to place in the community and from community to community throughout the country. Under our system of laws they have been established, and it needs but little reflection to see the good derived from them and the disaster that would follow their destruction. Under the present system, the entire country is open and accessible to every one, affording a splendid opportunity for that intellectual, commercial, and industrial development which follows association with others and exchange of products. The wider the range, the greater the benefit. We should not take a backward step, and the law does not authorize any policy looking to a destruction of this means of communication. On the contrary the whole tendency is to its encouragement. For its perpetuation the great’ right of eminent domain stands sponsor. Our constitution places that right even above the sacred right of private property, because it is for the public good. The law in its impartiality is as strict in seeing that the way for passage is as open to every person for every legitimate purpose of passage, as it is to prevent the closing of the way. If this were not true, the law would at once

fail, because any limitation against any special one would destroy the public character of the use. From what has been said, it must follow that from wheresoever he may come one may use any public highway wherever located in this State as a way of passage for any purpose. It may further be said that he may employ any kind of vehicle or- conveyance, so long.as the same does not exclude others from the enjo}rment of the way.- If the character of the vehicle or the method of its use be such as to introduce the idea of exclusive use, it will not be permitted; but if it be not such, it would be wrong to prevent it. If we adopt this exclusive use idea as a keynote, we will, upon application, find that every one of the textbooks and practically every decision cited in support of the several texts, where the right to operate railroads along the streets or other public highways has been discussed, turns finally upon whether the use intended to be made of the highway amounted to an exclusive use. See, among others, the following texts and decisions cited in support of each: 1 Wood on Railroads, 775; Washburn on Basements & Servitudes (4th ed.) *252; 2 Dillon on Mun. Corp. §725; Cooley’s Const. Lim. (7th ed.) 793; 1 Lewis on Em. Dom. (2d ed.) §111; Nordhurst v.* Ft. Wayne Co., 163 Ind. 268, 106 Am. St. R. 222, and citations in notes._ In the present case, what will be the manner of the use employed by the defendant? That has not been determined by actual experiment, and can only be determined by a consideration of what is proposed. It is true that the defendant, by its answer, says that it will not operate in such way as to exclude others, but at the same time it appears that the defendant has a charter from the State, with ample powers to operate a commercial railroad between distant points as a common carrier of freight and passengers. It shows the court that it is such a common carrier, and has for its. purposes, among others, the objects of carrying out its charter privileges, with great present capacity and bright future possibility. The laying of its tracks is only preliminary to what will be done. Under these conditions we may as well consider the facts as they must necessarily occur. On account of the ponderous and unwieldly nature of the machinery necessary to be employed over this railroad, the defendant could not observe the ordinary rules of the road. Its use of the street would be dangerous and inconsistent with that of pedestrians or the general public according to the various modes of travel. Its

whole tendency would be to exclude others, and the law would not look upon the use otherwise than as exclusive. Without first obtaining the lawful right to the use of the property, the defendant should have been enjoined from laying its rails or doing any other act in execution of the unauthorized use of the street.