Southern Railway Co. v. Byrum & King , 135 Ga. 426 ( 1910 )

Evans, P. J.

(After stating the foregoing facts.) We do not think it necessary to enter into a discussion as to what extent the order of the railroad commission may preclude the applicants from appealing to the courts to obtain the same relief which was denied to them by the railroad commission; for the reason that under the evidence before the judge the plaintiffs failed to make a case entitling them to the relief sought. As to Byruin & King it is clear that the spur-track was constructed by virtue of an agreement between them and the railway company, wherein it was stipulated that the railway company would have the right to remove the spur-track at the expiration of one year, or thereafter, upon giving them sixty days notice to that effect. The benefits which accrued to them from the construction of the spur-track were by virtue of the contract, which authorized the suspension of these benefits at a particular time. Having contracted that the spur-track might be removed, they can not complain that the railway company is proceeding to avail itself of its contractual right to remove the spur-track. The only claim which three of the plaintiffs set up for the continuance of the spur-track is that of convenience, and not of loss; and manifestly they have no right to interfere with the railway company in the operation of its line of road. The remaining plaintiff, Bird Kenny, does not in terms admit knowledge that the spur-track was built under a contract with Bjorum & King; yet, in his petition to the railroad commission as well as in his petition to the superior court, allegations are made and arguments advanced to support the contention that the spur-track should be made permanent, independently of the contract under which it was constructed. He was aware that the railway company intended to take up the spur-track, under its agreement with Byrum & King, at the time he filed his petition in the superior' court; and yet he does not negative any knowledge that the spur-track came into existence by virtue of a contract with Byrum & King. He joined with Byrum & King in the petition before the railroad commission, and, later, before the superior court. He was fully aware of their contention that the spur-track was established by contract, and could be removed in accordance with its terms, but insisted that under the special circumstances the railroad commission should make it permanent. It was incumbent upon him, in his effort to interfere in the internal management of the railway company’s business, to show all the facts entitling him to relief; and where the contention of the railway company before the railroad commission, and the court on interlocutory hearing, was that the spur-track was established by agreement which authorized its discontinuance on notice, and he does not undertake to deny knowledge of such fact, but, on the other hand, joins in the petition with the other party to the contract, who is undertaking to get relief outside of the same, we think that he has not made such a ease as would entitle him to be treated other than his coplaintiffs, who are parties to the contract. We therefore think that the court ’abused his discretion in holding that the railroad company should be enjoined from removing the track, according to the terms of the agreement by virtue of which it was originally laid down.

Judgment reversed.

All the Justices concur.