Smith v. City Council of Rome , 19 Ga. 89 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

In this case, we assume that the answer is true.

The answer says, in substance, that the complainant gave-to the defendant the right to open two public streets through, his land; that the defendant, in the exercise of this right, opened the two streets; that a “high rocky bluff” projects itself a part of the way across the track of one of the streets; that the defendant took from this bluff, at a point within the boundaries of the street, some rock, and used the rock in macadamizing the streets of Rome and in building culverts; and that the defendant claims the right, thus, to take and use such of the rock as is within the boundaries of the street.

■ The first question therefore is, whether the defendant has this right ?

The gift, by the complainant to the defendant, was that of the right of way over his land. It was no more than that. .

Is a gift of the right of way a gift of the earth, rock, trees, and other materials which may happen to exist within the boundaries of the way ? Is a gift of the right of way a gift of all the gold that may exist beneath the surface of the way, the right to which is given ?

In Goodtitle ex dem. Chester vs. Acker and Elmes, (1 Burr. 143,) Lord Mansfield said: “ 1 Ro. Abr. 392, Letter B. Pl. 1, 2, is express, e that the King has nothing lut the passage for himself and his people; but the freehold and all profits belong to the owner of the soil.’ So do all the trees upon it and mines under it (which may be extremely valuable.) The owner may carry water in pipes undmf it. The owner may get his soil discharged of this servitud eí'-' or easement of a way over it, by a writ of ad quod damnum.”

And in Lade vs. Shepherd, (2 Str. 1004,) which was an action by the owner for trespass done bythe appropriation of a part of a street which he had laid out on his land, the Court •say, “It is certainly a deduction to the public, so far as the public has occasion for it, which is only for a right of pas■sage. But it never was understood as a transfer of the abso-1 lute property in the soil.”

To the same effect is 2 Inst. 705. (See Woolvych on Ways, 5.)

[1.] A gift, then, of the right of way, is not a gift of the earth and other materials that may exist within the boundary lines of the way, the right of which is given.

It follows that the defendant did not have the right to take rock from “the rocky bluff” aforesaid, to be applied to the macadamizing of tho streets of Rome, and to the building of culverts. The defendant, no doubt, has the right to level the bluff, so as to make the street passable the whole width of it. In the right to make the street, is implied the right to do this. The defendant having the right to make the street, has a right to do every thing requisite to the making of the street. And this is the limit of the defendant’s right. The fragments of rock that might result from the process of levelling the bluff, would belong, not to the defendant, the owner of no more than the right of way, but to the conqjlainant, the owner of the soil.

The next and only other question is, whether the complainant had the right to an injunction to stop the defendant from taking rock from “the rocky bluff” aforesaid, and applying it to the uses of the City of Rome in macadamizing streets and building culverts ?

[2.] And we think he had. Taking rock for the purpose .of applying it to the uses aforesaid, would amount to the. commission of waste. (Com. Dig. Wast. (D. 4.) And an •injunction to stay waste, has become almost a matter of ■course. (Moore vs. Ferrell et al. 1 Kelly, 11; Eden. on Inj. 198, -9.)

We think, therefore, that an injunction to prevent the defendant from taking the rock, to be applied to the uses aforesaid, should have been granted.