Guess v. Stone Mountain Granite, Co.

Hall, Justice.

1. This case affords no reason for a deviation from what should be considered as settled practice as to the right to open and conclude the argument, where a bill has been brought to enjoin several common law actions, and where they, in consequence, are tried with the bill. Where both parties introduce testimony, the complainant in the bill has the right to open and conclude the 'argument, as was held by this court in Iverson vs. Saulsbury, 65 Ga., 724, 727.

2. There was no error in holding that the danger of possible collision of animals and persons with the trains running on the track of the railroad along the street, or of persons or animals being thereby frightened, Avere not elements of damages. Were this otherwise, it would bo impossible to construct and use any • railway oAror which cars were moved by steam in any place in the vicinity of a public highway or street, or along a portion of the same. The complaint that testimony was rejected going to show that this track was so constructed as virtually to exclude the respondents and the public from the use of the street by vehicles drawn by animals, does not appear to be well founded. The record shoAvs much testimony pro and con, bearing on the point. The approval of this ground of the motion for a new trial Avas qualified by the presiding judge to this extent only.

3. When the bill Avas before this court, upon exceptions to the injunction restraining the common law suits, and asking that the same be tried together with the bill, we held that there was equity in the bill, and that the injunction Avas properly granted; and also that, whilst the complainant was a private corporation, and not a public carrier, organized for any great public purpose, like railroads from town to town, and could not exercise the right to take private propertyfor public use, even with compensation , against the will of the owner of that property, yet it has the chartered right to run a road from Stone Mountain to the quarries at the mountain itself, to haul the granite to the Georgia Railroad, and to connect therewith by purchase or lease, or other leave given by the owners of the property along their route; and as the company shows the grant of the'use of the street in question by the town council of the town of Stone Mountain, it was not to be treated as a mere interloper or trespasser, against which, as a suitor, a court of equity would close its doors. 67 Ga., 215, 216, 217. Why was it not a trespasser, if the authorities of the town of Stone Mountain had no power to treat with it for ilie use of its streets, and to grant it that right, in consideration of an annual sum agreed to be paid and of an obligation to improve and keep in repair the street so used ? It is clear to us, if no such right existed, the company would necessarily be a trespasser in making such use of the street, and, as a wrong-doer with unclean hands, could not gain entrance into a court of equity. The respondents are estopped by this judgment from contesting the right of the company, therefore, to use this street for the pur • poses of their road, as well as from calling in question the power of the town council to enter into a contract with the company authorizing it. This view of the matter disposes of several questions insisted upon with earnestness and ingenuity by the able counsel for the plaintiffs in error j the discussion of these is foreclosed by the prior adjudication of this court in this very case. We differ from our learned brother as to the extent of that decision, and think that it determined something more than that there was no abuse of discretion in directing the injunction to issue according to the prayer of complainant’s bill.

4. The injunction sought by the cross-bill was refused, and the course pursued by the judge, in that respect, was commended as “legal, wise and just.” The question as to the mode of running the cars, as then shown by the answer and affidavits of the defendants to the complainants’ bill, was left open for future regulation by the final decree of the court, and if the evidence on the trial required it, the company might be constrained thereby to improve that mode, and held liable for past as well as future damages, if the property lying on the street should appear to be permanently injured. The questions then to be submitted to the jury on this trial were, whether the property of respondents had been injured by the company’s use of the street, and whether this injury was permanent, and if so, to what damages the parties were entitled. These were the points submitted to the jury on the trial of the case, and the court did not err in restricting the inquiry to these points, and instructing the jury, as complained of in the 8th and 0th grounds of the motion for a new trial, “If they found that the engine used by complainants was unsafe, or not reasonably such a one as would cause the least injury or annoyance to the occupants of said street, they could consider it an additional element of damage to the propercy of such as were damaged thereby,” or “that if the defendant, Guess, was damaged by the engine, while in the engine-house, with smoke, soot and noise, they would consider that as an element of damage and compensate for it.” The court could not, as it seems to us, make this a ground, as was insisted, for enjoining the use of the engine and track. This object would have been better secured by the award of damages foi the past, as well as the future, if the evidence warranted such a finding. The rights of both parties would have been thus secured. The plaintiffs in the several common law suits would have gotten what they sought thereby, and there would have been no such interference with the franchises of the company as would have deprived it of their proper and legitimate use.

5. The actual damage sustained by the parties, in consequence of the building of the road and the use of the engine thereon, was what they were entitled to recover in their several suits. If these damages did not exceed the increased value of the property by reason of the company’s improvements thereon, then they suffered no injury. City of Atlanta, vs. Green, 67 Ga., 386 ; Moore vs. City of Atlanta, 70 Ga., 611. Consequently, there was no error, either in the admission of testimony bearing upon this question, or in giving this p rinciple in charge. Doubtless it would have been better to have omitted from the charge all reference to the improvement of other property than that of the parties. The inadvertent use of these terms, “and other property o? the town,” we are satisfied, did no injury to the parties complaining. When taken in connection with the context, it is evident that the jury were not instructed to make them account for benefits to other property than their own.; and that the jury were not misled by the charge is quite certain, for they found that “the enhanced value of the property covered the damages for the past, present and future, and that the common law suits be enjoined, so long as the company kept the streets in good repair.”

All the other special grounds of the motion for a new trial have been disposed of by what we have heretofore said, and by what was decided when the case was before the court on a former occasion. The verdict, if not required, was certainly sustained by the evidence.

There was no material error, either in the charge or the rulings of the court, to which exception was taken.

Judgment affirmed.