Southwestern Railroad v. Mitchell , 69 Ga. 114 ( 1882 )

Jackson, Chief Justice.

This bill was filed by the South Western Railroad Company against Mitchell to restrain him from erecting a dam across a stream by which certain lands of complainant would be overflowed to their irreparable detriment, it being part of the right of way of the company. The temporary injunction was granted, and the case on the merits came on for trial, the defendant denying the main allegations in the bill, and setting up that he bought the land, mill, etc., from one Coker, who had authority to erect the dam from the company, and before he did buy he enquired of theSuperintendent of the road, etc., of the company, by whom he was informed that Coker had the right to overflow the land and that defendant would be safe in buying the land.

The jury found a special verdict on the facts as follows:

“Question f. Did Coker have permission to build the dam and overflow the land of the railroad ? If he did, who gave him such permission ?

Answer. Yes, Coker had permission. Virgil Powers.

Q. 2. When was the dam built and the land overflowed ? Give the date and the year.

A. We do not know.

Q. 3. When did Mitchell buy the mill property ? Did Mitchell, before he bought, have a conversation with Virgil Powers, superintendent, about the overflow of the railroad’s land ? If yes, what did Powers state to Mitchell as to Coker’s right to overflow said land ?

A. Bought 28th December, 1868. Mitchell did have a conversation with Virgil Powers about the overflow.

Q. 4. If Mitchell had a conversation with Virgil Powers before he bought from Coker, what did Powers say, if anything, as to whether he, Mitchell, could keep the land overflowed ? and would Mitchell have bought said property from Coker but for such statement ?

A. Powers said to Mitchell that he would not be molested; that the railroad authorities would not deed away any land, but always encouraged such enterprise. Mitchell would not have bought said property but for the above conversation.

Q. 5. Has the railroad been benefitted in any way by the construction of said dam, or the- digging of the race, or the flooding of the land ? If yes, state in what such benefit consists.

A. Yes; the railroad has been benefitted by the raising of the dam, and thereby raising the dirt road near the railroad, and by-raising the water around the culvert causes the sand to settle around the abutments.

Q. 6. When was the dam broke ? Did Mitchell abandon the right to rebuild it, or did he then intend to rebuild it, and try so to do ?

A. Dam broke in fall of 1879. Not rebuilt on account of not pro. curing a competent mechanic. Mitchell did not intend to abandon the mill; he did intend to rebuild, and did try so to do.

Q. 7. Was Mitchell solvent or insolvent at the time of the filing of this bill ?

A. Mitchell was solvent.

Q. 8. What officer of the railroad had the general superintendence of its affairs during the years 1866, 1867 and 1868 ?

A. Virgil Powers.

W. H. Matthews, Foreman.”

Thereupon, and on the facts admitted, the chancellor entered the following decree:

“The above stated case coming on for trial, upon request of counsel under the statute, controverted questions of fact only were submitted to the jury — the jury having answered the questions propounded to them, as will appear by their verdict returned and recorded on .the minutes of this Court. On said verdict, and the admitted facts, this decree is entered. The admissions were that in 1867 or 1868 Coker built the mill; that part of the dam was on the land of complainant, known as the right-of-way of complainant, and caused the water to overflow a part thereof; that the dam is still broken; that Virgil Powers was a director and superintendent, Walden, road master, and Poole, supervisor of complainant, from 1866 to 1869 inclusive. Whereupon it is considered, ordered and decreed by the court that the injunction prayed for by complainant be and the same is refused and denied. It is further ordered that the complainant, the Southwestern railroad, be, and it-is hereby, perpetually enjoined from interfering with respondent in keeping and maintaining a dam for mill purposes at the point where the dam now is, provided the respondent shall not have the right to back water on the land of complainant to any greater extent than it has been done heretofore. Should it ever become necessary to the prudent, proper and successful running and management of the Southwestern railroad that it should have the exclusive use and occupancy of the property with which they are herein enjoined from interfering, then nothing in this decree shall be construed to prevent- it from proceeding to acquire the same in any lawful way or manner it might do had the title thereto never been in said railroad. It is further decreed that the complainant, the South-western railroad company, do pay the entire costs of-this case, the same to be taxed by the clerk of this court. Decree signed June 6th, 1882. C. F. Crisp, J, S. C. S. W. C.”

To the refusal of the court to grant a new trial before the jury and to the rendition of the decree the railroad company excepted, and bring the case before the court.

1. The motion for a new trial is based upon the allegation that the answer to every question by the jury is contrary to evidence, and that the charge of the court upon’ the law relative to certain questions is erroneous, as well as the propounding of other questions, all of which are set out in the report at the head of this opinion with the facts of the case.

There is evidence to support the finding in answer to each question ; the presiding Judge approved the finding, and the well settled law is that this court in such cases does not interfere. We see no error in putting the questions to the jury which are excepted to, or in the charge giving explanations of each and the law thereon. The court below failed to discover any finding contrary to the charge, and we see none.

2. The facts of the case then are those found by the jury, and the question narrows to this: Is the decree thereon right ? Those facts are that Coker had permission from Powers to build the dam and overflow the land ; that Powers had the general superintendence and management of the road when he gave the permission; that before Mitchell bought of Coker he enquired about this license, and Powers, still superintendent, told him that he would not be molested in keeping the land overflowed, that the company would not deed away the land, but always encouraged such enterprise, and that Mitchell would not have bought but for this assurance; that the company has been benefited by the dam and raising the dirt road near the railroad, and raising water around the culvert so as to settle sand around the abutments; that the dam broke in the fall of 1879, was not rebuilt on account of failing to procure a competent mechanic, but that Mitchell tried to do so and failed, and that Mitchell was solvent.. The admissions were that Coker built the dam, that part was on the land of the company and was still broken, that Powers was superintendent and director, Walden road-master, and Poole supervisor. On these facts did the chancellor err in decreeing a perpetual injunction against the company restraining them from all interference with defendant’s dam and mill, as prayed for in answer as a cross-bill, but providing that the company could acquire the property whenever it should be necessary to the successful running of the road ?

It is to be observed that the fee to this land is in the railroad company. The entire doctrine of eminent domain is therefore out of the case. It can do what it pleases with the land it absolutely owns, unless the great purpose of the franchise — the safe running the road for the benefit of the public be thereby impaired. In the event it should be found necessary hereafter that the land free from overflow be used for this great purpose, it can be done by the obtaining according to law the anulling of this license, upon such terms as equity would require, as the decree declares. Up to this time no such necessity appears. And the license from this corporation, holding the fee in this land, will work precisely the same right in the licensee as would be conveyed by any natural person owning the fee.

Where, then, a grantor, owning the fee in lands, gives by parol a license to another to erect a part of a mill dam •on the grantor’s land and to overflow a part of that land, in the view of benefiting his own estate, and at the expense of large sums of money the licensee executes the contract, builds the dam and a mill — useless without it, and thereby does benefit the grantor’s estate, .what will equity do? Upon great fundamental principles of right, it will not permit the grant or to revoke and annul the license at will and without any remuneration, but the contract being executed and money expended in its execution, it must hold the grantor to the continuance of the license, unless he pay the licensee for its revocation.

Authority is abundant to sustain a principle so just, and without referring elsewhere our own reports are full of it. •In 3 Kelly, 82, it was first announced, and Judge Lump-kin cites many authorities, and concludes that such executed licenses at expense to the licensee are irrevocable. This case is followed in 12 Ga., 239, in a decision rendered by Judge Nisbet, where the same conclusion is reached, and the licensee, when he has expended money upon the faith of the license, is said to occupy the position of a purchaser for value, and the grantor cannot revoke at will. The case in 3 Kelly, is very similar to the case at bar. There was a parol license to overflow his land by a coterminous owner of a tract to his neighbor, the erection of a dam, mill, etc. Here the licensee and the grantor, the company, are coterminous owners of adjoining lands too, and the license is given and the dam and mill are built. That case rules this, unless a corporation has greater rights, when it owns the fee to real estate, than a natural person, which I do not suppose will be seriously insisted upon. Other cases to the same effect may be found in our following reports, but these from the eailier books are sufficient to establish the principle.

Did Mitchell lose any right which Coker acquired ? Hardly, we think, when Powers told him to buy, and that he would not be molested in respect to this dam and mill and overflow.

Does it make a different case in equity that a storm and flood swept away the original dam? Not under the facts here found. The mill stood. The mill was built at expense on the same faith in the license, and is useless without the dam.

Did Powers bind the company by the parol license? He was their general superintendent, their chief executive officer, their agent about all such matters as the management of the road and its way and preservation. The culvert necessary to the road was benefited, the business promoted by the mill, and to look especially to such things was his duty. He saw the mill go up, the dam constructed, the money spent, and gave the license, and acquiesced for years in its use after its execution. He was director as well as general manager. If he could not bind the company, what agent could ? If no agent could, then indeed may a corporation do what it pleases without question from any power because it can only act by agents.'

But the directors all acquiesced. For years the dam and mill and overflow were in sight of the road over which they travelled, and no word of complaint was heard. If it was their duty to inspect, they ought to have seen it all; if it was the superintendnt’s duty, he ought to have seen it. If it was nobody’s duty, is it law or justice that if one expends his money on the license given him by the general manager of the company, and nobody stops him from working on the land of the company and using it at much expense for years, he should fail to acquire rights because the company employed nobody to look after its property? We cannot think so, nor can we find any authority for such reward of such laches.

3. But one point insisted on in argument remains, and that is that the flood swept away the dam and the defendant was too slow in rebuilding and thereby lost his right* But the evidence is conclusive that he immediately or very shortly employed a mechanic who could not work for him at once, and the jury found that he did not abandon his license. Without laches or fault with him, equity will not suffer the providential occurrence to debar him of what he has paid for, standing as he does on the footing of a purchaser for value, as held in 12 Ga., supra.

In reviewing the entire case, we cannot see that taking the facts found by the jury for true, and there is evidence to support them, the court erred in the decree. It must therefore be affirmed.

Judgment affirmed.