Southern Railway Co. v. Wofford Shoals Light & Power Co. , 1910 Ga. LEXIS 498 ( 1910 )

Lumpkin, J.

(After stating the foregoing facts.) According to the uncontradicted evidence, the plaintiff and defendant were engaged in a negotiation for the purpose of entering into a written contract in regard to permitting the plaintiff to construct its wires across the right of way of the defendant. While this negotiation was in progress, and before the written contract had been signed, the plaintiff erected the pole which is the subject-matter of the controversy. The vice-president and general manager of the plaintiff (who was also the person who signed the contract as president) sought to justify this action by saying that he had consulted with the track supervisor of the defendant, and the latter agreed to the location of the pole. But it is evident from his own testimony that he did not consider the track supervisor as an officer having authority to make a contract for the company, and that this approval of the supervisor was merely tentative. The supervisor denied making any agreement, and testified without conflict that he had no authority to make any such contract. When the written contract was returned for signature by the plaintiff’s officer, the pole had been erected, but the wires had not been strung upon it. It is evident that the plaintiff’s officer understood that the company declined to agree for him to have a pole upon its right of way. He testified that customers were urging him for the electrical service, and “ henee I signed this unreasonable contract with said defendant company, not expecting any change or trouble with them. A great outlay of money was necessary to bring and construct our lines to these' points, and we had no time to parley with these defendants. . . I signed the contract and kept it in my pocket for a few days, and had the wires strung on these poles after signing the contract.”

This was not a condenmation proceeding under the State’s right of eminent domain, but the pole must have been erected b.y the plaintiff upon the defendant’s right of way either by virtue of the agreement with the defendant or without regard to the agreement. If the erection of the pole and the stringing of the wires upon it are sought to be justified by the agreement, it was done in palpable violation of the terms of the contract, which declared that no poles should be erected upon the defendant’s right of way. If such action was not taken by agreement with the defendant, it was a trespass and without any justification in law. It can not be successfully contended that the plaintiff had any legal right to invade the right of way of the defendant and plant its pole thereon without the consent of the defendant, or to keep it there after being wrongfully so placed, over the objection of the defendant. In either event, therefore, the plaintiff had no right to maintain its pole upon the defendant’s right of way and to string wires upon it.

The consent order which was taken, continuing the case, contains an indication that the plaintiff recognized the necessity for obtaining a further agreement from the defendant in order to maintain its pole upon the right of way of the latter. This is not a case where two parties are in controversy as to the ownership of land, and where one erects improvements or structures upon it under his claim of ownership or right.

From what has been said it follows that the court erred in granting the injunction on the ground that the pole had been erected a few days before the contract was signed. Nor .was the error cured by adding to the order the mandatory provision, of at least doubtful propriety, as a part of a ruling on an application for an interlocutory injunction, that the plaintiff was required to comply with the contract in all other respects.

Judgment reversed.

All the Justices concur.