Carlton v. Seaboard Air-Line Railway , 143 Ga. 516 ( 1915 )

Atkinson, J.

1. In order to recover damages from the railroad company for obstructing the private way, it was essential that the plaintiff should be entitled to maintain a road at the place where the defendant obstructed it. As to this feature of the case, the plaintiff projected his suit, first, upon the theory that he had title, and, though he had executed a deed conveying the land on which the railroad was constructed, that the deed did not operate to deprive him of the use of the existing private way which was intersected by the strip of land so granted; and, second, upon the theory that if the deed had such effect, nevertheless, after the deed was executed and the railroad constructed, he continued to use the roadway under such circumstances and for such length of time as to afford him a private way by prescription. Whether the plaintiff could recover upon the first theory depends upon the effect of the deed. It was executed upon á valuable consideration, and purported to convey the strip of land therein specifically described, in fee simple, with a clause of general warranty of title. This was not all. It was also declared that all of the land “is conveyed absolutely and without reservation.” Under these circumstances the deed, in effect, was an absolute conveyance of the grantor’s interest in the strip of land described, without any reservation whatever, thereby vesting any title to the property which he had or might subsequently acquire in his grantee. In 3 Elliott on Eailroads, § 1138, it is stated, relatively to a deed by a landowner to a railroad company, conveying a right of way, which is silent as to private crossings between the different parts of his land, that the rule is “that such a conveyance does not constitute a waiver of a right •to a private crossing, and the owner whose land has been severed into parcels may claim and enforce the right to a crossing, notwithstanding his unconditional instrument. of conveyance.” See also Brigham v. Smith, 4 Gray, 277 (64 Am. D. 77), and annotations in 9 Notes to Am. Dec. 353. See also cases cited in 17 Am. Dig. (Cent. ed.) 807, § 59. The rule so stated rests upon the theory of an implied reservation. It does not seem that this rule has been adopted in Georgia. Charleston & Western Carolina Railway Co. v. Fleming, 118 Ga. 699 (45 S. E. 664). None of these authorities, however, go to the extent of holding that there would be an implied reservation where the land on which the railroad was to be located was conveyed in fee and the deed expressly declared, as in the ease now under consideration, that there should be no reservation. There could be no such implication in the face of an express recital that there should be no reservation. The land conveyed by the deed was so situated as to intersect the existing road; and by the terms of the deed the plaintiff put it out of his power, by virtue of his ownership theretofore existing, to maintain the road over the section of land which he granted to the railroad company, and put it in the power of the railroad company, in so far as it might affect the plaintiff, to close the road. Charleston & Western Railway Co. v. Fleming, 119 Ga. 995 (47 S. E. 541).

2. The right of private way over another’s land m'ay arise by prescription from seven years uninterrupted use through improved lands, or twenty years use over wild lands. Civil Code, §§ 3641, 818, 824. A prescription of this character may arise notwithstanding the prescribe!’ may know that the land over which he .undertakes to prescribe is tbe property of another. The way must not exceed 15 feet in width, and its use as a way must have been continuous for the statutory period, and the preseriber must have kept the road in repair. Kirkland v. Pitman, 122 Ga. 256 (50 S. E. 117). In the case at bar, notwithstanding the plaintiff, by virtue of his deed, had transferred his title in the property conveyed to his grantee, nevertheless, according to the allegations of the petition, lie continued to use the private road across the land so granted. The land was improved by the construction of the railroad thereon and the trestle over that part of it which intersected with the plaintiff’s private roadway. Accordingly, seven years was the prescriptive period applicable in such a case. The road was less than fifteen feet in width, and the same road-bed had been continuously used and kept in repair by the plaintiff for a length of time which exceeded the prescriptive period. Under such circumstances, he would acquire a right of private way by prescription. See also 3 Elliott on Railroads, § 1140.

3. Applying the ruling announced in the preceding division to the allegations of the petition, it set forth a cause of action sufficient as against general demurrer, and it was 'error to dismiss the petition. Judgment reversed.

All the Justices concur.