Georgia Northern Railway Co. v. City of Moultrie , 1927 Ga. LEXIS 19 ( 1927 )

Beck, P. J.

(After stating the foregoing facts.) The judgment rendered by the trial court in this case wras equivalent to sustaining a general demurrer to the petition; and we are of the opinion that the petitioner was entitled to an interlocutory injunction restraining the defendant from opening the proposed street until, at a trial, it could be determined, upon evidence duly submitted, whether or not the second use to which the strip of land embraced in the crossing, and which the defendant is attempting to condemn, involves a practical extinguishment of the former use, or renders its exercise so extremely inconvenient and hazardous as to practically destroy its value for the purpose to which it is devoted by the railway company. It seems that decisions heretofore rendered by this court are practically controlling upon the question here involved. In the case of City Council of Augusta v. Ga. Railroad &c. Co., 98 Ga. 161 (36 S. E. 499), it was said: “In order to authorize a municipal corporation to take, for the purpose of opening or extending streets, property already devoted to public use, the power must be conferred in express terms, or by necessary implication. A general power conferred by legislative enactment upon a municipal corporation 'to open new streets, change, widen, or to extend streets already opened, within the corporate limits/ does not expressly confer upon the municipality the authority to take and use for this purpose land already in use by a railroad company for purposes embraced within the provisions of its charter.” In the course of the opinion rendered in that case it was said: “In sparsely settled communities, it is possible to establish a public way across the track of a railroad company without serious embarrassment to the company in the exercise of its corporate franchises, and in such a way as the second use may be reasonably consistent with the first. If the conditions are such that they may be reasonably made to consist, there is no such encroachment upon the prior public use as even appreciably to impair, much less extinguish it; and therefore, even though some slight inconvenience may result to the prior occupant, there is no reason why a second public use, when granted even in general terms, may not be held to confer upon the public authorities the right in such manner to exercise it. A different result follows, however, when the enjoyment of the second use involves the practical extinguishment of the former, or renders its exercise so extremely inconvenient and hazardous as practically to destroy its value. In such a pase, the right to enjoy the second use must rest upon express legislative authority, and will not be implied. The exercise of the second use, under such circumstances, would amount to a forfeiture of the first.”

It will be seen, by a reference to the statement of facts, that if the proposed crossing is permitted to be made, the- effect of placing the crossing at the point described will either destroy the use of the property by the railway company or seriously impair the rights of the company to the regular, effective, and profitable use thereof. And we will now inquire whether or not there is legislative grant of power to the City of Moultrie to interfere with the rights of the railway company as they now exist, and to impair them to the extent indicated; that is, whether or not there is express legislative authority given to the city to do this. If such authority is given, it must be found in the act to create a new charter for the City of Moultrie, approved November 20, 1901 (Acts 1901, p. 591). In section 21 of that act it is provided that “The mayor and aldermen shall have- full and complete control of and authority over the streets, alleys, and sidewalks of the city, and' shall have full power and authority to condemn property for the purpose of opening and laying out new streets and alleys, and for widening, straightening, or otherwise changing the streets, sidewalks, or alleys, and grading the streets, sidewalks, or alleys of the city; and whenever the mayor and aldermen shall desire to exercise the power and authority granted in this section, it may be done whether the land sought to be condemned is in the hands or control of the owner, trustee, executor, administrator, agent, guardian, or other person.” We do not think that express legislative authority to open the proposed street, under the facts and circumstances alleged, can be found in the section quoted; and if not found there, it is not in that charter. Nor is there any other section of the act which enlarges this authority relatively to the question we have in hand. That power is not enlarged by the provision in the same section of the act that “In all cases where property sought to be condemned belongs to a railroad or other corporation, the notice to condemn may be served on the nearest agent of such railroad or corporation.” The part of the section last quoted merely provides for service in condemnation proceedings. Of course it is to be implied that condemnation proceedings may be maintained against the railroad company, but it is not to be implied from this that condemnation can be had which would result in a practical destruction of the uses to which the strip of land embraced in the crossing had already been devoted. The difference, under the law, which is made in cases of condemnation of strips of land across railroads for the purpose of making a crossing there, where in one case it will practically destroy the former use, and where it is consistent with the former use, is brought out in decisions rendered by this court. The case of City Council of Augusta v. Ga. R. &c. Co., from which we have already quoted, is one such case. And in Town of Poulan v. A. C. L. R. Co., 123 Ga. 605 (51 S. E. 657), it was said: “Power delegated by the State to a municipal corporation to ‘condemn property for the purpose of laying out new streets and alleys, and for widening, straightening, or grading, or in any way changing the street lines and sidewalks of said town/ is sufficiently broad to authorize the condemnation of so much of the right of way of a railroad company as may be necessary for the construction of a street crossing and the extension of a street over such right of way.” This is the third headnote in the case referred to. But in the course of the decision it was said: “We do not think the petition in the present case makes such a case of inconsistent uses as, under the decision just cited, would authorize the court to enjoin the exercise by the town of the power to condemn, conferred upon it by the General Assembly. The crossing is to be fifty feet from the company’s depot, and traverses only two tracks, the main line and a siding at a small station, and therefore would not seriously interfere with the use of the depot and grounds. The crossing might at times somewhat inconvenience the company in the conduct of its business, and possibly require it to be more circumspect and careful in order to avoid injury to persons using the crossing; but its use is not, under the facts alleged, so inconsistent with the prior appropriation by the company as to destroy, or even seriously impair, the company’s right to use its property for the purposes to which it had previously devoted it.” It will be seen, from a reading of the foregoing statement, how different the instant case is from that of Town of Poulan v. A. C. L. R. Co., supra, taking the situation to be as described in the decision in that case, etc.; for, under the circumstances described in this petition, the company could no longer use, with safety to itself and the public, the track which leads to the coal-chute, and would have to move the coal-chute itself. See also, in this connection, City of Atlanta v. Ga. R. &c. Co., 148 Ga. 635 (98 S. E. 83). Under this decision and our construction of the charter of the City of Moultrie, quoted above, we are of the opinion that whether or not the making of the crossing will create another use which is inconsistent with the use to which the strip of land involved has already been appropriated should be determined under evidence properly submitted at a trial of the case upon its merits.

Judgment reversed.

All the Justices concur, except Russell, O. J., who dissents.