City Council v. Georgia Railroad & Banking Co. , 98 Ga. 161 ( 1896 )

Atkinson, Justice.

1-2. We do not think the court in the present case erred in granting the injunction prayed for. The proposition that the devotion of property under statutory authority to a public use protects it against a subsequent appropriation to another and inconsistent use, unless such subsequent appropriation be by virtue of express statutory authority, or rest upon a power which is necessarily implied from the nature of the uses and purposes declared in the subse-' quent grant, seems to be well established. That the right of eminent domain extends to property which has already been appropriated to a prior public use is not doubted, nor is the proposition open to question that the legislature by express enactment may authorize the appropriation of the property already devoted to a public use to another and entirely inconsistent public use, whenever the necessities of the public so require, or if the legislature, while not expressly authorizing the appropriation to a public use of property so previously applied, confers a second grant, in the exercise of which it is absolutely indispensable that property held under a prior appropriation shall be devoted to the public use- so thereafter declared, the power to so apply it may be implied; but it is equally well settled that a general power conferred upon municipal corporations to open new streets, to change; widen or to extend streets already opened within the corporate limits, does not expressly or by necessary implication confer upon such municipality the authority to take and use land already appropriated to a public use. This proposition may be well illustrated by reference to such a hypothetical case as one which we will now proceed to state: The State of Georgia, at an expense of a million dollars or thereabout, has within the city of Atlanta erected a magnificent public building for the accommodation of the various departments of the State government, including the legislative, judicial, and executive. To that end it has appropriated a considerable quantity of land lying in the heart of a populous city. Power generally is conferred upon the municipal corporation in which this property is situated to open and extend streets, and lay out new ones, in the discretion of the mayor and council of the City of Atlanta, whenever the public necessities may require them so to do. Have the city authorities of Atlanta, under the power thus granted, the right to lay out, extend and open streets which would lead through the capitol building? To ask the question is to answer it in the negative. Yet it cannot be doubted that the legislature could, by express enactment, confer upon it such a power. While, of course, it is beyond the range of human probability that such a thing will occur, we know of no legal obstacle to the exercise of such a power by the General Assembly. It has accordingly been held, that “under a general authority to lay out highways, a part of the right of way of a railroad cannot be taken longitudinally.” See 39 N. J. L. 28; 36 Conn. 255. “Nor can the way be laid through depot grounds.” See 30 Minn. 359; 23 Minn. 167; 91 N. Y. 552. Nor through lands occupied by a railroad company for shops. (53 Ga. 120) “and the like, which are devoted to special rises in connection with the road and necessary to its operation and in constant use in connection therewith.” Lewis on Eminent Domain, §266.

3. Where, in the absence of express legislative authority to so appropriate the property devoted to' a prior public use, it becomes important to inquire whether such power arises from necessary implication in a given case, the legist lative intent is to be arrived at by applying the enactment to its subject-matter. 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 ease, 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. Forfeitures, as a general rule, are not favored, will never be implied, and least of all where the effect would be to deprive one of a substantial right which he enjoyed under a valid subsisting legislative enactment.

4. In the present case the circuit judge found, upon the facts submitted at the hearing, that the two uses sought to be impressed upon the same lands were utterly inconsistent, ■and that to' allow the City Council of Augusta to open the street in question at 'the point designated, would amount to a virtual extinction of the prior right of the railway company. In the absence, then, of express legislative authority for so doing, the power could not be implied from the general grant of power in the municipal authorities “to open new streets, to change, widen or extend streets already opened within the corpor°te limits.”

There was sufficient evidence in support of the ruling of the judge tO‘ sustain his finding, and he properly granted an injunction until such time as a jury should be empanelled to determine the .questions of fact involved.

Judgment affirmed.