Griffin v. Augusta & Knoxville Railroad , 70 Ga. 164 ( 1883 )

Jackson, Chief Justice.

1. This record brings before us the sole point whether the refusal of the injunction by the chancellor to enjoin a railroad company, which had completed and equipped its road at the cost of hundreds of thousands of dollars,, from running its road'through the complainant’s land, which was part of the road-bed so completed and used by it, until the damage for the right of way and cutting down and using the timber thereon was assessed, — the entry of the company thereon and use thereof as a right of way and the appropriation of the timber on the right of way not having been legally objected to until the whole road was built and equipped. We think it would have been inequitable to grant the injunction prayed for, under the facts. The road has not been sold and the original company substituted by a foreign corporation to which the franchise had passed, nor had judgment for damages been rendered as in the case of Gammage et al. vs. The Georgia Southern Railroad Company, in 65 Ga., 614; though ■even in that case, the refusal of an injunction was affirmed by this court. The question of the insolvency of the company in the case at bar is denied, and that fact is contested by proof, and the chancellor has passed upon it.

It is true that, under the constitution of 1877, private property cannot be taken or damaged for public use, unless just and adequate compensation be first paid. Art. 1, Sec. 3, Par. 1; Code, 5024; but if the owner allow it to he taken or damaged without legal opposition thereto until an immense sum of money has been expended in completing and equipping an entire road, of which his land is but a fractional part, of comparatively little value, it would not do to enjoin the franchise to the use of the entire road ■until that damage and occupancy were assessed and settled. One cannot stand by and suffer another to expend money to large amounts on his land, as part of a great ■system of improvement, and then stop by injunction the entire system until he is paid. He must move in limine. He must defend at the threshold. Vigilantibus non dormientibus jura subveniunt. Laches is a lock to the door of equity, which few keys, if any, are strong enough to open. Certainly none will open it when it has caused the expenditure of money which cannot be repaid, and caused injury which cannot be repaired. Pierce on Railways, 168 and cases cited; Wood et al. vs. The Macon c& Brunswick Railroad Company, 68 Ga., 539.

2. Besides, the charter prescribes a complete remedy at law. 2 Redfield, 346 and cases cited. Charter of company : Acts, 1877, p. 228, Sec. 10, p. 231.

Judgment affirmed.