Wood v. Macon & Brunswick Railroad , 68 Ga. 539 ( 1882 )

Jackson, Chief Justice.

The powers of chancery are invoked in this case to enjoin the Macon and Brunswick Railroad Company, in the hands of its present management, from extending its track from Macon to Atlanta through Rose Hill cemetery, in the former city. The injunction was denied by the chancellor, and complainants, who are private owners of certain lots in the cemetery, except to that judgment and assign it for error in this court.

1. They say that the present company have no title to the road because the governor did not comply with the terms of sale prescribed by the general assembly, and therefore that the injunction should have been granted.

Substantially we think that the terms were complied with, and if they were not in mere particulars, not of vital consequence, that fact would not operate to render void the sale, at the instance of private parties especially, so as to prohibit the company from going on with the road, the state not interposing at all, but having received part of the purchase money, and being equitably bound, to refund it before she herself could well set the sale aside.

She has virtually acquiesced in it, not only by the acts of the governor, but of subsequent legislatures.

2. We think, therefore, that it is beyond doubt that the present company, by virtue of the lease and subsequent purchase of the road from the state, have title thereto, and have acquired the right to construct or extend the road from Macon to Atlanta, according to the original and amended charter and subsequent acts of the general assembly. The main purpose of the legislature, it seems to us, was a competitive line with the Central Railroad from Macon to Savannah and from Atlanta to Macon, and the extension was in the legislative mind all along their action on the lease and sale authorized by them. To say that the lessees who afterwards purchased under the act of the general assembly did not acquire the right to extend the road, would be to defeat the main current of the legislative will, and divert it from the course in which the legislature designed the whole legislative action to flow. Of course, this right to construct the road is subject to all the limitations which the constitution and laws affix to all grants of such franchises, and private and municipal rights must all be respected by the company as they progress in the work. If, therefore, the citizens of Macon and owners of lots in her cemetery have rights which in equity and good conscience inhere in them by virtue of the constitution and laws, and if this company seeks to violate them and is about to do so, equity would intervene, if no other remedy appeared, even to the harsh extent of arresting a great work of internal improvement or diverting the course of that work. The question in this case, therefore, is, are there equitable rights in these complainants, and are those rights so jeopardized by the action of this company in passing through the" cemetery as to require the remedy by injunction.

3. What are the rights of complainants ? They allege that they own lots in the cemetery, and that the passing of this road through the cemetery does not consist with their use of the lots for the purposes of burial; that the land over which this road now seeks to pass was dedicated to the public for those purposes of burial; and that the generally assembly could not, and did not in fact, mean to annul the prior dedication.

We think it clearly established by our own adjudications, without reference to other authorities, that the state, though it may have dedicated property to one public use, by the exercise of its right of eminent domain, has the power to' dedicate a portion of the same property to another public use, not inconsistent with and destructive to the first use. The doctrine has been applied to country roads and streets, where grant's to railway companies to use portions of such public ways have been upheld, especially with the consent of the public authorities, over the particular ways, and without regard to objection of private persons. 43 Ga., 201; 44 Ib., 547; 45 Ib., 602; 50 Ib., 451.

4. The point then becomes this question: even conceding that the state had dedicated this ground for a cemetery, has it authorized the use of it for another great public object? That must clearly appear either by express grant or by necessary implication ; because the presumption would be that if she had granted all of it for one public use, she would not make another grant inconsistent with the first. She has granted the right to run the road directly from Macon to Atlanta — to extend it from the former to the latter place. So, to extend it, it must" pass through the city of Macon, because its present terminus is on the side of Macon farthest off from Atlanta, and the direct line contemplated would pass along the bed of the Ocmulgee river, that being the most direct and convenient route. The proof before the chancellor satisfied him, and the depositions in the record sustain his judgment beyond doubt, that the latter grant is not at all inconsistent with the prior grant, if there had been one. The road runs along the river, close to it, and on ground not capable of being used for the burial of the dead, and when built it will operate as a sort of breakwater, and not detract from the beauty of the cemetery. Such is the testimony — the decided weight of it, — and our rule is unvaried, never to interfere with the chancellor on a matter of fact, if there be evidence enough to sustain his ruling thereon.

5. But it seems that the city has assented to this act of the company, and not only so, but that she made the dedication herself. The state gave the common to her, and she dedicated this part of it for burial purposes. She now consents to the use of a part of it by the road, in her judgment unimportant for the former use ; she contracts for a consideration that the company may use such unimportant part, and private persons seek to defeat her action and annul her contract.

We cannot see that their particular lots are in any wise injured by the contract. The general government and ornamentation of the cemetery is for the city. She may not injure the private property of any lot owner therein, but it is for her to lay off avenues and cut down or plant trees and shrubbery for the general beauty of the whole, and to adopt measures for its security ; and it will not do to hold that two or three, or a hundred, lot owners have the right to appeal to the courts and stop her in such preservation and ornamentation.

In this case but very few, three I think, of the lot owners are complaining, while the action of the city authorities is sustained by the overwhelming voice of the citizens. So that the effort to set up equitable rights in such a case as the facts here make must fail, no matter whether the doctrine in regard to the power of the state, if she had dedicated the particular ground for the cemetery, be right or' wrong.

6. It seems, too, that these complainants are too slow' to be permitted to set up equitable abstract rights, even if they ever possessed them.

The contract between the city and company had been long made; the line towards the cemetery laid off; money expended thereon in rights of way and other purposes; the road-bed actually laid or graded on a portion of it, before complaint was made.

The principle that to the vigilant, and not to the sleepy, equity opens her portals is applicable here, and ap. plies with sufficient force always to close her doors when by rea son of that sleep the adverse party has expended money and 1 abor, thinking that nobody interested would oppose the right to complete what had been commenced in the confidence which non-action by everybody interested had engendered.

7. As before stated, facts, when in dispute are for the discretion and judgment of the chancellor, and the face of this court is set like flint, and has been time out of mind, against interference therewith, unless grossly abused. In this case there is no abuse, but the judgment on facts and law was demanded and must be affirmed.

Judgment affirmed.

Cited for plaintiffs in error : 6 How. R., 507; 7 Ib., 185; Pierce on Railroads, 154-5-6; 21 Am. R., 643; 57 Ill., 363; 43 Conn., 234; 53 N. Y., 575; 20 Hun, 201; 12 Ga., 239; 43 Conn., 234; 33 Ga., 601; 47 Ib., 565; 49 Ib., 476; Code, §2223; High on Inj., 139, 140, and note; 12 Ga., 239; 48 Ib., 44; 29 La., 38; Acts of 1878-90. 115; 16 Wall., 203; 9 Wheat., 738; 14 Pet., 497; 12 Ib., 524; 101 U. S., 601; 2 Dill. on Mun. Corps., 3d Ed., 914 et seq.

For defendants: Acts 1878-9, p. 115; Fort’s Comp., p. 53; 8 Ga., 228; 17 Ib., 29; 20 Ib., 797, 802; 46 Ib., 350; Code, §§2360-61; 5 Ga., 22: 6 Ib., 458; 25 Ib., 374; Field on Corp., 71; Fort’s Comp., pp. 21, 50, 53; 43 Ga., 200; 44 Ib., 547; 45 Ib., 602; 51 Ib., 451; 23 Ohio, 510; 6 How., 507; 13 Ib., 71; 17 Conn., 196; 3 Bland (Md.), 442; 24 Iowa, 455; 8 Dana, 289; 14 Gray, 93; 10 Min., 82; 31 Md., 180; 10 N. J. Eq., 352; 36 Penn., 99; 7 Ind., 479; 18 Barb., 222; 3 Head, 596; 22 Vt., 458; 33 Mo., 128; 25 N. Y., 526; 1 Redf. on R. R’s, 268; Const., 1877, Sup. to Code, 575; 39 Md., 631; 66 Penn., 411; 42 Ib , 132; 46 N. Y., 503; 5 Am., 377; Acts, 1835, p. 226; 50 Ga., 451; Code, §§2997-8, 4094; 59 Ga., 190; 54 Ib., 29; 13 Barb., 646; Acts of 1847, p. 36; and Record, pp. 5 and 7.