Mayor of Atlanta v. Georgia Railroad & Banking Co.

McCay, J. . Erom the bill, answer and affidavits in this record, we are clear that the judgment of the Circuit Judge, in granting and continuing this inj unction j was right. It is at least doubtful, from the evidence, whether Butler street was ever a public street across this road, except as the railroad made it so, by opening the culvert. Again, the city seems to have been satisfied with this culvert, from 1851 till this bill was filed. It is rather late in the day to insist that a nuisance which has existed over twenty years, is so intolerable, and of such immediate, pressing inconvenience, that the city cannot wait for a trial on the merits, before it is removed. It must be remembered, that the railroad, while it is a private corporation, is, at the same time, created for the public good, and if it will be an inconvenience to the city to wait, it will be a serious inconvenience to the public to have a squad of street hands tinkering with .the road-bed of the railroad. At best, the right of the city to treat this obstruction as a nuisance, is doubtful, and it would be an abuse of the discretion of a Circuit Judge' to undertake to settle this question, until a trial is had. Our law makes this a matter to be tried by a jury, and to allow the city to go on with its work, would be an assumption by the Court, in a case like this, of the powers of the jury- Judgment affirmed.