Dougherty v. Western & Atlantic Railroad , 53 Ga. 304 ( 1874 )

Trippe, Judge.

1. Without going into all the learning developed in the argument of this case, the decision of the controlling point in it may be limited to a single question : Was the boundary of the right of way granted by Mitchell to the state, and which was designated by the chief engineer of the state, or under his authority, binding on the grantor of that right and his privies? The grant was executed in 1842. It conferred the power on the chief engineer to designate over and upon lot of land number seventy-seven, the right of way for the use and purpose of the Western and Atlantic Railroad, a great public work belonging to the state, comprising a road or track of sufficient' space and breadth to answer all the convenient and necessary purposes of said road. In the. same year the chief engineer, by his assistant, laid off and located under this grant the right of way for said road on said lot, one hundred feet in ■width. He made a chart of this survey, which was deposited in his office. At the same time, the same officer, as-the agent of the grantor, surveyed and located for him a part of the lots in the city of Atlanta, on said lot seventy-seven. This survey marked out and bounded city lots twelve and thirteen, which were afterwards conveyed by Mitchell or his administrator by virtue of a bond of title given by Mitchell, to the father of complainant, whose right descended to her by inheritance. The agent of Mitchell made a map of this survey of lots twelve and thirteen, giving their southern boundary, as the line of said right of way, which had been previously laid off and which is the line now claimed by defendant in error. The main track of the Western and Atlantic Railroad was shortly thereafter laid in the center of the right of way thus designated. All the city maps show the same line as the boundary between lots twelve and thirteen and the railroad. Mitchell lived more than five years afterwards, and there is no evidence, of any complaint or protest on his part against the act of the engineer as the officer of the state, or as his own agent, nor was it shown that there was any abuse of authority on the part of the engineer in laying off said right of way of the width of one hundred feet. Cera tainly Mitchell acquiesced in this, all of which was done under his grant and by his authority. That he must have known all that was done, is a conclusion to which the evidence irresistibly forces us. His own agent., who had also acted for the state in executing the authority Mitchell himself had conferred on him, had surveyed other of Mitchell’s property lying on said right of way, marked out the lots for him and made their boundary line the very line to which the right of way was so laid off, and five years thereafter, in the bond for titles which he executed to a vendee of those lots, he recited that they were bounded on the south by the Western and Atlantic Railroad. There can be no doubt of his having notice, and being bound by this action of the very agent selected by himself to act for him and for the state. As against Mitchell, the right of way thus marked out, was complete and perfect in the state. Does a purchaser from him have a right that Mitchell did not have? It is not disputed that there are cases where a vendee may be protected in asserting what his vendor cannot. But this is notone of those. It is as strong a case of a purchaser having such notice, that will charge him with the necessity of making inquiry as to the right of another, as can he found. To sustain this position, it is not necessary to nolice the questions arising out of the fact that the deed to the state from Mitchell was recorded before his vendee paid all the purchase money, and took his deed from Mitchell’s representative. There is another fact that controls this question against plaintiff in error. In the bond for titles made by Mitchell in 1847, when a little more than half of the purchase money was paid, as well as in the deed of his representative made in 1850, when the balance of the purchase money was paid by Connally, the holder of the bond, it was recited that the southern boundary of the two lots included in those papers, was the Western and Atlantic Railroad, in the bond for titles it is called the state railroad. At the time the bond was executed the state had a complete and perfect right against Mitchell, the vendor. Its road was already laid in the center of said right of way. A chart of the'one hundred feet liad been made and was in the office of the chief engineer, in the city of Atlanta. There was no other place for it to be kept. No provision of law required its registry, so as to be notice to the world. The state also held Mitchell’s grant. Complainant’s own title papers gave notice to those who took them, that the limit or boundary of this great public work, so-called iii Mitchell’s grant and belonging to the state, was the southern boundary of what was purchased from Mitchell in 1847 — the two lots, twelve and thirteen. What was the limit or boundary of that road ? Could the purchaser have thought it was only the eight or ten feet covered by the road bed ? If he could claim that his line went beyond the outer limit of the one hundred feet, he could just as well say it reached to the bed of the road, to the end of the cross-tics, or to the line of the embankment or excavation. No one pretends this. About twenty feet is all that is claimed. Restricting the claim to this, is an acknowledgment that the right of the road extended beyond its bed. If so, how far? If the purchaser -was bound to yield to the right of the road to go outside of what it in fact covered by its bed, then he is bound by what that right actually was. Five minutes inquiry would have informed him. His vendor, the owner of lot seventy-seven, did, in fact, put it in the bond that the road ran through the lot, that the two lots he was buying were bounded by it. That vendor had made the grant to' the state. He knew how far the right of the state extended. The purchaser read his bond and saw the road with its cars running over it. It is impossible to conceive that he did not make the inquiry; that he wras not, in fact, informed of the exact truth, and bought with full knowledge; at least the law charges him with all this. As authorities on the principle involved in this question I refer to 19 Georgia, 337; 26 Ibid, 132; 25 Ibid, 55; 48 Ibid, 585; 22 Maine, 312; 4 N. H., 397; 2 Mass., 508; 1 Pick., 174; 3 Ibid, 149; 2 Ves., 437; 16 Ibid, 250; 1 Sto. Eq., sec. 400; Sugden on Vendors, 1052.

2. As to the abuse of power by the chief engineer in laying off the right of way an unnecessary width, sufficient has been said to show that Mitchell was bound by the survey. He never complained. For five, years he acquiesced, and, it may be said, ratified it, both in accepting the maps of lots twelve and thirteen from his agent, and in selling by those maps. It certainly is too late now, under all those facts, after a lapse of thirty years, to raise that question.

3. No officer of tlie Western and Atlantic Railroad could, by any agreement or negotiation with the purchaser, made without authority of law, bind the state. No such authority was shown giving power to shell officer to make admissions recognizing title out of the state, nor does the mere fact that complainant, or any one under whom she claims, did, by the acquiescence of such officer, hold possession for awhile, or exercise dominion over a portiou of the right of way, affect the state, so far as they concern the ascertainment of the true boundary thereof, or the right and title of the state to the same. That right came from the grant from Mitchell. That boundary is wbat the survey of the chief engineer made it. What they were, was clearly shown. No acts or agreement with unauthorized officers of the state could take either away. No statute of limitation or prescription ran against the state so as to be a bar : Code, section 2682.

4. Whether the deed from Mitchell to the state operated as a grant of the fee, or an easement only, does not affect the questions involved : Tyler on Boundaries, 111; Wash, on Easements, 3.

Judgment affirmed.