Tift v. Golden Hardware Co.

1. The owner and operator of a spur track over which adjoining owners receive rail service may, in his discretion, dismantle and abandon such track where under no contractual or statutory obligation to maintain the same.

2. In order to acquire a statutory right of private way over another's land, the private way shall not exceed fifteen feet in width and the prescriber must have kept the private way open and in repair.

3. "Before one can assert a way of necessity over the land of another, every essential requisite to such a right must affirmatively appear. Not only the necessity of ingress to and egress from his own land must exist, but it must further be alleged that there is no other suitable outlet."

4. There are certain essential elements to a valid dedication of land to a public use: (1) an intention on the part of the owner to dedicate the property to a public use; (2) an acceptance thereof by the public; and (3) where implied dedication is relied upon, it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift.

5. Recitals in a deed bind only parties and privies, and are not evidence for or against any one not claiming under the deed.

6. While a parol license for the use of land becomes irrevocable and an easement running with the land, where the licensee makes investments and incurs expenses in the execution of the license itself, the mere fact that a licensee erects improvements upon his own land and thereby incurs expense in the expectation of enjoying the license would not be such an expenditure as would make the licensee a purchaser for value and the license irrevocable.

7. The trial court erred in restraining and enjoining the defendant from going upon or using any portion of his own property, and in authorizing the plaintiff to construct and use a spur track on the property of the defendant.

No. 16454. JANUARY 11, 1949. Golden Hardware Company brought its petition on June 7, 1948, in the Superior Court of Tift County, against T. W. Tift, and W. P. Brown trading as W. P. Brown and Son. The petition alleged substantially: that the plaintiff corporation has a warehouse for the storage of commodities such as are usually dealt in by hardware companies, located on an alley between Love Avenue and Central Avenue, in the City of Tifton, and just west [east] of the old Central Grocery Company building, which is served by a service or switch track of Georgia Southern and Florida Railway Company, which track extends from the main line on the west in an easterly direction to the south side of Central Grocery Company building; that there is an alley 19.8 feet in width between the warehouse of the defendant Tift and that of petitioner, which has been dedicated to public uses, burdened with the said service track; and that the defendant Tift, acting through his agent and employee Brown, is in the act of removing said track from the said alley and from the building of the plaintiff, so that no car can be placed there for unloading.

By an amendment to the petition, allowed June 17, 1948, it is alleged: that the spur track of Georgia Southern and Florida Railway Company is the only means of rail ingress and egress to and from the plaintiff's property; that such means of ingress and egress have been enjoyed and used by the plaintiff and its predecessors in title for more than 20 years; that such use has been continuous, uninterrupted, open, notorious, and adverse to the claims of any person to interfere therewith during the entire period of more than 20 years; and that the plaintiff's right to the use and enjoyment of ingress and egress to and from this property by rail results not only from prescription, but also from the fact that the properties over which such service track extends were dedicated to such use by the predecessor in title of T. W. Tift, more than 50 years ago. The petition further alleges that the plaintiff acquired the property on which its warehouse is constructed from H. H. Tift, who was also the predecessor in title to T. W. Tift, some 32 years prior to the filing of the petition, with knowledge on the part of H. H. Tift as to the use and purpose to which such property would be devoted, and with the full understanding that such property was served and would continue to be served by the described spur track.

By a further amendment to the petition, allowed July 30, 1948, it is alleged: that during all of the 32 years the plaintiff has enjoyed the right of rail service at its warehouse; it has paid for switching charges, formerly to the predecessor in title of Tift, to wit, the Tifton Terminal Company; that during all of that period, up until the attempted removal of the track, no notice was given to the plaintiff that the track would be removed, nor was the plaintiff ever requested to purchase or pay any sum for such service other than the switching charge; that the plaintiff is now able, ready, and willing to pay a reasonable sum for the value of a sufficient amount of such a track for the easement thereon that would enable it to continue to obtain rail service at such warehouse, and will make such payment upon the direction of the court at any time; that the defendant has previously sold such easement to trackage privileges along such spur track to certain named persons; that the plaintiff is perfectly agreeable to making payment in a like sum on a pro rata footage basis; that a part of the track in question, the roadbed and the ties are still intact upon the right of way of such spur track which served the plaintiff and now remain there; that, in order to give access to all of the parties along the track, including H. V. Kell Company, the same crosses a street of the City of Tifton, to wit, Love Avenue (Central Avenue), and thereby, has become dedicated to public purposes of such users; that, in order to receive the service heretofore rendered over and by such track, it will be necessary that the spur track extend 9 feet east of the plaintiff's warehouse, which will be ample for such purpose, and will leave to the defendant 10-1/2 feet, which will be sufficient alley for the purposes of egress and ingress to the defendant's property mentioned in his answer.

By still another amendment, allowed August 25, 1948, the petition alleges: that, just prior to June 14, 1916, at which time the plaintiff acquired from the late H. H. Tift a portion of the lot on which the present warehouse is situated, the plaintiff had a spur track at the rear of its main hardware building just across the alley from the defendant Tift's building; that it had rail service from such track from Captain H. H. Tift, doing business as Tifton Terminal Company; and that, at the request of H. H. Tift, the plaintiff agreed for the removal of such spur track in the rear of its main hardware building, and acquired the site of its new warehouse from Central Grocery Company and H. H. Tift for service by rail at the new location. It is further alleged: that the defendant contends that he offered to sell such spur track as was located at the south of the warehouse building to the plaintiff for $500, which offer the plaintiff denies, but alleges that, if the defendant Tift did make such offer, the plaintiff accepts the same and tenders to the court $500 in consideration of at least 35 feet of such track and land upon which it was originally located not less than 34 feet east from the abutting line on the west of the plaintiff's warehouse building, which would serve the plaintiff by rail at its warehouse.

The original petition prayed: (1) that the defendants be restrained and enjoined from the removal of said service track until further order of the court; (2) that said injunctive relief be made permanent; (3) that the plaintiff have judgment for such damage against said defendants as may be done; and (4) for such other and further relief as to the court seems meet and proper. By its first amendment, the plaintiff prayed further that the defendants and each of them be enjoined and restrained from interfering with the plaintiff's means by rail of ingress and egress to and from its property, and that the defendants be restrained and enjoined from entering upon the property over which the said service track extends to the property of the plaintiff.

To the petition as originally presented, the defendant, T. W. Tift, filed his answer, in which he denied all of the material allegations of the petition, and alleged: that the spur track referred to in the petition is a privately owned track; that this defendant owns fee-simple title thereto at all points along the same east of where the track leaves the property of H. V. Kell Company; that neither Georgia Southern and Florida Railway Company nor the plaintiff has any right, title, or interest in or to the track, nor has either of them ever owned any right, title, or interest therein; that the plaintiff has no contractual rights requiring this defendant to maintain any switch track or service track for the benefit of the plaintiff's property, nor does it have any right to require the same to be maintained by reason of any statute or otherwise; that this defendant is not engaged in the business of a common carrier or other utility, but is a private individual, owning a private spur track on lands to which he holds fee-simple title; that any use the plaintiff may have made of the defendant's spur track heretofore has been purely a matter of grace and permission without payment of any consideration and without any duty or obligation on the part of this defendant to supply any such service; that this defendant is proceeding to remove the track in connection with the improvement of his own property, and is in no way committing any trespass to the plaintiff or its property; that before this suit had been filed and before any restraining order had been issued, he had completed the removal of the switch track which adjoins the property of the plaintiff; and that any order made or entered in this cause in the nature of a restraining order or injunction would be fruitless to prevent the removal of the switch track, which has already been accomplished; and he prayed that he be discharged.

The defendant, W. P. Brown, also filed an answer to the original petition, denying all material allegations thereof, and alleging that at the time and on the occasion referred to in the petition he was in the State of Florida and was not present in Tifton, had no knowledge of the action complained of, and was in no way connected with the same. These allegations of this defendant were not controverted on the trial of the case.

Upon the presentation of the petition, the court entered the following order: "The above and foregoing petition considered, ordered filed. It is further ordered that the defendant, T. W. Tift, and his agents and employee be and they are each enjoined from further removing such track, instanter. Let them be served with this order instanter. Let them and each of them show cause before me at Tifton, Georgia, on the 12th day of June, 1948, at 10:00 o'clock a. m., why the prayers of petition should not be further granted. So ordered, this 7 June, 1948."

The interlocutory hearing was continued to June 18, 1948, at which time evidence was introduced by both the plaintiff and the defendant, T. W. Tift, in support of their respective contentions.

Attached to the brief of counsel for the plaintiff in error, is a sketch or plat showing the location of various properties referred to in the petition and answer, and the location of the spur track here involved, which counsel for the defendant in error agreed clearly describes the situation.

It appears from the evidence that about 1887 H. H. Tift owned all of the land on both the north and south sides of the spur track, and that the spur track originally extended from the main line of what is now the Georgia Southern and Florida Railway Company eastwardly across Central Avenue, along the south side of the Central Grocery Company or H. V. Kell Company property, the present warehouse building of the plaintiff, the Owens Grocery Company property, and on across Love Avenue to a large mill which Tift owned, and was constructed for the purpose of enabling him to make shipments from his mill over what is now the Georgia Southern and Florida Railway Company. Later the switch track became a part of what is known as the Tifton Terminal Company, which was simply a trade name of H. H. Tift, who had a number of switch tracks in the City of Tifton, built in connection with his various enterprises and extending to the various railroads serving the city; he also owning a switch engine.

H. H. Tift had sold off parcels of land from time to time to various people along the several switch tracks, and they had established businesses thereon. H. H. Tift used his switch engine in delivering carload shipments from the several railroads to these businesses located along these spur tracks, and for several years made some charges therefor, although J. J. Golden, president of the plaintiff corporation, testified that he "could not tell whether there was ever a service charge made for those deliveries by the Tifton Terminal Company or H. H. Tift. I don't believe I have ever paid anything for the service. I don't remember whether I have or not." The spur track here involved was a part of the Tifton Terminal Company operation. Mr. Tift sold his switch engine and discontinued the Tifton Terminal Company operation about the year 1922, since which time Georgia Southern and Florida Railway Company has made deliveries over the track.

Prior to the year 1916, a side track or switch track had been operated along the 30-foot alley immediately south of the original Golden Hardware Company building, and this track served the Hardware Company store up until the time it was removed. The evidence does not disclose when this track was removed from the 30-foot alley, but it was some time before the construction of the Golden Hardware Company warehouse now involved, which was constructed in 1916. J. J. Golden testified that this side track was removed from the 30-foot alley with his consent, and that thereafter H. H. Tift suggested to him that he secure the present warehouse site, at which he could obtain rail service. The plaintiff did purchase from H. H. Tift a strip of land fronting 10 feet on the south side of the 30-foot alley and running back 75 feet to the spur track here involved; and along about the same time, purchased an additional 15-foot strip from Central Grocery Company, and constructed thereon the present warehouse building, in order that it might receive rail service over the spur track here involved. Prior to the purchase by Golden Hardware Company of these two strips of land, H. H. Tift had sold to Central Grocery Company a tract of land fronting 250 feet on the south side of the alley, and the 15-foot strip, which the plaintiff purchased from the Central Grocery Company, is the easternmost portion of that tract. Thereafter Central Grocery Company improved its property, locating a building thereon, and by deed, dated April 9, 1923, purchased from the heirs at law of H. H. Tift a tract immediately south of its property and fronting 37 feet on Central Avenue, over which the spur track in question passed, thereby acquiring from the heirs of H. H. Tift fee-simple title to all that portion of the spur track adjoining its property. In that deed there was a provision: "This conveyance is made subject to an easement for the use of railroad track now on said above-described land and ground sufficient for said track for the use of such persons, firm, or corporations as may now or hereafter be served over said track from either end of same."

Several portions of the spur track were sold from time to to time to people who had acquired land adjoining it, and it is contended by the defendant, T. W. Tift, that he made an offer to sell Golden Hardware Company that portion of the spur track adjoining its property along about the time the Central Grocery Company acquired its portion of the spur track, but that Golden Hardware Company would not purchase.

At all times prior to the discontinuance of Tifton Terminal Company and subsequently to the sale to Central Grocery Company by deed dated April 9, 1923, H. H. Tift, or his estate, or T. W. Tift, one of his heirs, have owned the property presently occupied by Owens Grocery Company and located at the intersection of the 30-foot alley and Love Avenue, and just east of the private way between that property and the warehouse of the plaintiff, and this property of the defendant Tift has been served by rail from the spur track at all times until its removal, which formed the basis of this litigation. Because this property lies east of the warehouse property of Golden Hardware Company, it was necessary for the defendant, T. W. Tift, to maintain the spur track and to permit it to remain if he was to receive rail service at the Owens Grocery Company building.

It appears from the evidence that, continuously from the time of the erection of the Golden Hardware Company warehouse building here involved, the plaintiff has received service over the spur track, formerly by Tifton Terminal Company up until 1922, and after the death of H. H. Tift the track continued to be used by Georgia Southern and Florida Railway Company for the purposes of placing carload shipments to the various owners along such track, until it was severed by the defendant, T. W. Tift, on June 7, 1948.

J. J. Golden, as president of and as a witness for the plaintiff, testified: "Since I purchased this property where my building is, I have never done anything toward maintaining or keeping up that side track. I have never spent any money on it. I have never done any work on it. I have never replaced any rails or ties. I have never paid any taxes on it. I don't know how wide that right of way is. I have never measured it."

The trial court rendered its judgment on September 25, 1948, as follows: "The above and foregoing matter, coming on for a hearing on the original petition and the amendments thereto, and pursuant to the nisi order of June 7, 1948, having been duly considered after the introduction of various evidence of the parties, and after careful consideration thereof, it appears to the court that the equities of this case lie with the plaintiff, as it appears, prior to the purchase of the warehouse in question from the defendant Tift's father, that he was receiving service by rail in a public alley at the rear of the south side of his main hardware store; and that, shortly before the purchase of the lot in question from the predecessor in title of the defendant Tift, he was moved to purchase the lot on which the warehouse is situated on assurance that he could receive continued rail service which he has received for thirty-two years preceding the severing of the rails therefrom by the defendant Tift, without any notice to the plaintiff; and that the defendant Tift recognizes an easement in such strip of land sufficient to service such warehouse by rail as shown by virtue of his conveyance with the other heirs of his father, H. H. Tift, to Central Grocery Company on April 9, 1923, as recorded in Deed Book 12, page 467, of the public deed records of Tift County, Georgia.

"It further appearing that defendant Tift contends he had sold all the other abutting owners to such side track rights of user therein, and also, that he had offered the same to the plaintiff, Golden Hardware Company, at and for a consideration of Five Hundred Dollars, all of which, the petitioner denied, but in view of such contention on the part of the defendant, he made a legal tender of such sum to the defendant Tift, which was refused, and that by the actions of such defendant, in denying a right to the petitioner, which he condeded [conceded] to every other user of such service or spur track, he will cause the petitioner to suffer irreparable damage though the use of such easement will in no way damage the defendant in the use of his property.

"It is to be noted that the service originally given to the petitioner was by the Tifton Terminal Company, a public service carrier, and operated solely by H. H. Tift, and since the death of H. H. Tift, such service has been received on such track from the G. S. F. Railway Company, altogether for a period of thirty-two years continuously since acquisition of such warehouse site. The court recognizes that under the laws of the State that the owner or operator of a public utility, such as Tifton Terminal Company, has a right to discontinue service and operation of such utility at its discretion.

"It is, therefore, ordered that, the defendant Tift having removed the rails immediately abutting petitioner's warehouse property that he may, also, if he desires, remove the crossties which were imbedded upon such right of way at the time of the original restraining order;

"Further, that the said T. W. Tift be and he is and he and his servants, agents, or employees are hereby restrained and enjoined from interfering with a sufficient portion of such roadbed as originally used as a service track beginning at the west property line of the warehouse of petitioner and extending easterly not less than thirty-four feet, and from going upon or using any portion of such space needed for the service by rail at petitioner's warehouse.

"Petitioner may place a track upon the property for service by rail at his warehouse subject to the final disposition of this case and subject to such reasonable rental as may be found in favor of such defendant, T. W. Tift, if any."

To all of this judgment, except the third and fourth paragraphs thereof, the defendants excepted. 1. The evidence is undisputed that the defendant, T. W. Tift, is the owner of the fee-simple title to the land traversed by the spur track in question. No reason has been called to our attention, and we are unable to conceive of any, which would place upon an individual owning and operating a spur track such as that here involved any greater duty than that imposed upon a public utility, engaged in the business of a common carrier, owning a spur track over which adjoining owners may receive rail service. Both this court and the Court of Appeals have repeatedly recognized the right of a common carrier, in its discretion, to dismantle and abandon a spur track which is maintained by it and over which adjoining owners receive rail service, where under no contractual or statutory obligation to maintain the same.Southern Ry. Co. v. Toccoa Rock Crushing Co., 47 Ga. App. 558 (171 S.E. 179); Lucas v. Southern Ry. Co., 130 Ga. 606 (61 S.E. 404); Durden v. Southern Ry. Co., 2 Ga. App. 66 (58 S.E. 299); Southern Ry. Co. v. Byrum, 135 Ga. 426 (69 S.E. 550). The trial court in its judgment recognized this principle by permitting the defendant to remove the crossties remaining on the right of way of the spur track, and we think properly so, for the record in this case fails to show that either the defendant or any of his predecessors in title ever received any consideration for or were under any statutory duty or contractual obligation to continue the maintenance of the spur track, and such being true, the fact that its discontinuance may depreciate the value of the plaintiff's property affords no reason for its continued maintenance and operation by the defendant. Southern Ry. Co. v. Toccoa Rock Crushing Co., supra.

2. The Code, § 85-1401, provides: "The right of private way over another's land may arise from express grant; or from prescription by seven years' uninterrupted use through improved lands, or 20 years' use over wild lands; or by implication of law when such right is necessary to the enjoyment of lands granted by the same owner; or by compulsory purchase and sale through the ordinary, in the manner prescribed by Title. 83, Private Ways."

It is not insisted by the plaintiff that it has acquired any express grant of the spur-track right of way, nor does the plaintiff insist that it has acquired the right of private way over the lands of the defendant Tift by compulsory purchase and sale, as provided for by the last sentence of the above Code section. It is insisted, however, that it has acquired a right of way or easement by prescription, but we do not think this contention sound. In Nauman v. Treen Box Co., 280 Pa. 97 (124 A. 349, 32 A.L.R. 1344), it is held that there could be no prescriptive private way at common law, no matter how long or how much it might be traveled, for the reason that at common law the use of a private way was not treated as continuous, because its physical use depended upon some act of man, and each use was regarded as a separate and complete action, and that no prescriptive right could ripen. It is further pointed out in that case: that an easement of this character, though incorporeal, is an interest in land; hence, if it is to be decreed to be a permanent easement, the owner must, as in the case of other interest in land, have such a right to it as cannot be taken from him save as the result of his own act or neglect; that, under this test, a railroad siding, such as that here involved, is not a permanent easement, for it may be destroyed or rendered valueless by the acts of third parties over whom the plaintiff has no control, and despite strenuous objections made by him; that the city, by appropriate proceedings, may greatly change the grade of or vacate the street traversed by the spur track; that the railroad company may relocate its line without incurring any liability for so doing; and that in these and other ways the spur track or siding would be effectually destroyed as an easement, all of which would be beyond the control of the plaintiff. Thus, there being no prescriptive right of a private way at common law, the plaintiff could have acquired a prescriptive easement or right of private way only by virtue of statute. Our statutory provisions for acquiring a prescriptive private way are found in the Code, §§ 85-1401, 83-102, and 83-112, and these specifically provide that the private way shall not exceed fifteen feet in width and that the prescriber must have kept the private way open and in repair. In this case it is undisputed that the roadbed of the spur track here involved was sixteen or more feet wide, and the plaintiff has done nothing in the way of labor and has expended nothing in keeping the spur track open and in repair. In the absence of these statutory requirements, no prescriptive right of private way over another's land can arise. Kirkland v. Pitman,122 Ga. 256 (50 S.E. 117); Carlton v. Seaboard Air-Line Ry.,143 Ga. 516 (85 S.E. 863, Ann. Cas. 1917A, 497).

3. Nor can the plaintiff rely upon the theory that the spur track is a way of necessity. In Charleston and Western CarolinaRy. Co. v. Fleming, 119 Ga. 995 (47 S.E. 541), it is held: "Before one can assert a way of necessity over the land of another, every essential requisite to such a right must affirmatively appear. Not only the necessity of ingress to and egress from his own land must exist, but it must further be alleged that there is no other suitable outlet." See alsoCharleston and Western Carolina Ry. Co. v. Fleming, 118 Ga. 699 (45 S.E. 664). The undisputed evidence in this case shows that the plaintiff has easy access to his warehouse building by way of the thirty-foot alley to the north of his building, extending from Central Avenue on the west to Love Avenue on the east.

4. Neither can the plaintiff rely upon dedication. There are certain essential elements to a valid dedication of land to public use: (1) an intention on the part of the owner to dedicate the property to a public use; (2) an acceptance thereof by the public; and (3) where implied dedication is relied upon, it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift. Healey v. Atlanta, 125 Ga. 736 (54 S.E. 749); Hyde v. Chappell, 194 Ga. 536 (2) (22 S.E.2d 313). There is no evidence in this case that either the defendant or his predecessors in title ever intended to dedicate this right of way to a public use. The spur track was constructed by H. H. Tift many years ago to serve his own private business, and he later used it in his business of Tifton Terminal Company to serve businesses and industries which had been erected along the spur track. This was a private enterprise, privately owned, privately operated, and privately controlled until sometime in 1922, when he discontinued this business, sold his switch engine, and shortly thereafter died. From that time, it appears that those who were in control of his property began to sell certain portions of the spur track to the people who owned land adjoining it, and the remaining portion continued to be owned by his estate or his heirs at law, who have continued to control the same, relocating a portion of it on one occasion. There is no evidence that either H. H. Tift or his successors in title ever intended to dedicate the spur track to a public use, or that it has ever been accepted as public property by any body or political subdivision representing the public, or that it has been used generally by the public, but only by those comparatively few who owned lands adjoining the spur track.

5. It is further contended that the plaintiff acquired some right in the spur track by reason of the recitation contained in the deed from the heirs at law of H. H. Tift to Central Grocery Company, dated April 9, 1923, wherein it is provided: "This conveyance is made subject to an easement for the use of the railroad track now on said above described land and ground sufficient for said track for the use of such persons, firm, or corporation as may now or hereafter be served over said track from either end of same." The plaintiff acquired its property in 1916, long prior to the execution of the deed to Central Grocery Company, above referred to. The plaintiff is not a party to this deed and does not claim title under it. Accordingly, it avails the plaintiff nothing, for recitals in a deed are binding only upon the parties thereto or their privies. Yahoola River c.Mining Co. v. Irby, 40 Ga. 479; Howard v. Snelling,32 Ga. 195; Hitchcock v. Hines, 143 Ga. 377 (85 S.E. 119);Hanks v. Phillips, 39 Ga. 552 (2); Dixon, Mitchell Co. v. Monroe, 112 Ga. 158 (3) (37 S.E. 180); Campbell v.Sims, 161 Ga. 517 (2) (131 S.E. 483). And even though such recitals in the deed might operate as an estoppel against the defendant and in favor of Central Grocery Company in an action founded on the deed itself, it would not so operate in favor of the plaintiff in this collateral action. Hughes v. Cobb,195 Ga. 213, 234 (23 S.E.2d 701); Coldwell Co. v. Cowart,138 Ga. 233 (75 S.E. 425).

6. It is also contended by the plaintiff that it has acquired the right to the use of the spur track as an easement running with the land, under the provisions of the Code, § 85-1404, which provides: "A parol license is primarily revocable at any time, if its revocation does no harm to the person to whom it has been granted; but is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easement running with the land."

The evidence discloses that at the time the plaintiff purchased from H. H. Tift a portion of the property upon which its warehouse is located, H. H. Tift granted to the plaintiff a parol license to use the spur track and consented to furnish rail service to the plaintiff's warehouse, and that the plaintiff purchased the land and constructed the warehouse at considerable expense on the faith of this promise. Counsel for the plaintiff cite in support of this contention the following cases: Waters v. Baker, 190 Ga. 186 (8 S.E.2d 637); Dickey v.Yarbrough, 186 Ga. 120 (197 S.E. 234), and cases therein cited. We are in full accord with the principles announced by this court in the Waters case, that, "Although a parol license for the use of land is revocable at any time of its revocation does no harm to the licensee, yet where the licensee has executed it and in so doing has incurred expense, it is irrevocable and becomes an easement running with the land." But the plaintiff's evidence does not bring its case within those principles, for the reason that it has done nothing to execute the license, and has incurred no expense and made no investment in the license itself. The spur track was already in existence and suitable for use at the time the plaintiff acquired its property, and the plaintiff has done nothing to enhance the value of the spur track or to improve its usefulness so far as the licensor is concerned. The plaintiff did acquire its property and construct its warehouse, but these it still has; it merely improved its own property in the expectation of enjoying the license, and, as pointed out by Mr. Justice Bell, in Miller v. Slater, 182 Ga. 552 (186 S.E. 413) "under the authorities this was not such an expenditure as would make the license irrevocable." Although, as appears from the preceding statement of facts, it was alleged in the plaintiff's amendment, allowed August 25, 1948, that, just prior to June 14, 1916, when the plaintiff acquired from the late H. H. Tift a portion of the lot on which the present warehouse is situated, the plaintiff had a spur track at the rear of its main hardware building, just across the alley from the defendant Tift's building, and that it had rail service from such track from Captain H. H. Tift, doing business as Tifton Terminal Company, and that at the request of H. H. Tift, the plaintiff agreed for the removal of such spur track in the rear of its main hardware building and acquired the site of its new warehouse from Central Grocery Company and H. H. Tift for service by rail at the new location — there was no evidence of the plaintiff's consent to the removal of the spur track referred to in this amendment. The plaintiff's witness, J. J. Golden, testified: "When the Golden Hardware Company was erected, there was a track in this thirty-foot alley. I couldn't tell you when the track was moved but it was removed prior to the construction of my warehouse. This warehouse was constructed in 1916. . . They had already taken up the track in the 30-foot alley and I purchased the land across the street." None of the other evidence introduced tended at all to support the allegations of the amendment set out above. However, under the authorities cited in the first division of this opinion, H. H. Tift and his successors in title had a right to discontinue this track with or without the consent of the plaintiff, so that even had the plaintiff consented, as alleged in the petition, he would have parted with nothing thereby.

The belated tender made by the plaintiff in its amendment to the petition, allowed and filed August 25, 1948, after the interlocutory hearing on June 18, 1948, can avail the plaintiff nothing. In the first place, the plaintiff denies that any such offer was ever made by the defendant to convey to it the spur track adjacent to its property for the sum of $500, but says that, if the defendant contends that it was made, it is now accepted, and the plaintiff tenders to the court — not to the defendant — the sum of $500. But, this tender is not for so much of the spur track as adjoins the plaintiff's building, but for "at least thirty-five feet of such track and land upon which it was originally located not less than thirty-four feet east from the abutting line on the west of petitioner's warehouse building, which would serve petitioner by rail at his warehouse." This so-called tender comes too late, after the withdrawal of the offer by the defendant, and even if in time, is not unconditional, but for more track and land than was included in the offer.

7. Under no theory of the case was the plaintiff entitled to the relief sought, and the trial court erred in restraining and enjoining the defendant, his servants, agents, and employees from going upon or using any portion of his own property, and in authorizing the plaintiff to reconstruct and use a spur track over the property of the defendant.

Judgment reversed. All the Justices concur, except Bell, J.,disqualified.