Mayor of Macon v. East Tennessee, Virginia & Georgia Railway Co.

Bleckley, Chief Justice. As the court below restricted the functions of the jury to the single question of identity of the premises in dispute, we shall deal with the case and discuss it only far enough to show that this restriction was erroneous. We think two additional questions were for determina™ — 507 — tion by the jury, the first being whether the Macon & Brunswick Railroad Company accepted the grant made to it by the State in conjunction with the city of Macon; and the second whether if it did, that the company or its successor, the East Tennessee, Virginia & Georgia Railway Company, lost the grant by failure to devote the property, within a reasonable time, to the objects and purposes for which it was acquired. 1. At the time the act of 1868 (acts 1863, p. 225) was passed, the title to the Macon reserve was not in the State, but was in the corporate authorities of the city of Macon; the same having passed out of the State by the act of 1856. (Acts 1855-6, p. 495.) It was not the. purpose of the act of 1863 to grant to the Macon & Brunswick company a donation or gratuity; for the act was not passed by the General Assembly in the method prescribed touching donations by the constitution of 1861. (Code of 1863, §4948.) Had it been so passed, the yeas and nays would have been entered on the journals of each house. (Id. §4940.) "We have examined these journals, (House, p. 167;. Senate, p. 146,) and find that the yeas and nays were not so entered. The act may well be construed, therefore, (since by its own terms it would have no force without the assent of the city council of Macon) as a conveyance from that municipality to the railroad company,.made in consideration of local benefits to the city expected to be derived from the use of the property in the manner contemplated by the act. The preceding act of 1856 expressly disabled the city to aliene or even to offer to sell, aliene or convey. The act of 1863 took off this restriction as to the premises to which the latter act applied. Perhaps the most accurate view would be to treat the act as a joint grant made by the State and city, the title to the property at that time being in the city, arid the — 508 — city’s assent to the grant being expressly required. Tbe language of the act, including tbe caption thereto, is as follows: “ An act to grant the use of certain grounds in the Macon Reserve to the Macon and Brunswick Railroad Company, and the Milledgeville Railroad Company, for depot purposes, with the consent of the city of Macon. “ Section I. Be it enacted by tbe General Assembly of tbe State of Georgia, that the State of Georgia will, and hereby does, grant to tbe Macon and Brunswick Railroad Company, and the Milledgeville Railroad Company, ten acres each, out of tbe lands belonging to what is known as tbe Macon Reserve, to be used by said railroad companies for depots, shops and other conveniences and fixtures necessary for said railroad companies (tbe assent of tbe city council of Macon being first bad thereto), upon such terms, conditions and limitations as shall be agreed upon between tbe city council of Macon and said railroad companies. “Sec. II. Repeals conflicting laws.” It will be seen that tbe “terms, conditions and limitations ” were left to be agreed upon between tbe city council and tbe railroad company. Of course, therefore, no title whatever passed to tbe company by mere force of tbe act itself. It follows that whether any terms, conditions and limitations were agreed upon, and if so what these were, must be determined as a preliminary for bolding that tbe company acquired any interest in tbe land; and surely these matters cannot be adjudicated as pure questions of law, but are in large degree questions of fact, depending upon what took place between tbe city council and tbe company, and upon subsequent conduct, as shown by tbe evidence both written and unwritten. If enough appeared in tbe documents to form tbe basis of a conclusive legal presumption that tbe company accepted tbe grant upon tbe terms, conditions and limitations laid down in tbe report .of tbe committee which tbe city council adopted, then tbe aid of tbe jury upon this part of tbe ease could be dispensed with; but no writing — 509 — appears in tíre record which shows that the company ever agreed to the terms, conditions and limitations proposed by the city council. Without such agreement, either express or implied, what the legislature did, and what the city council did, would be of no avail, since by the provisions of the act, some agreement between the council and the company was absolutely essential. Admitting that it would follow from the fact that the action of council was in response to a petition made to it by the company, that the company’s acceptance might he presumed, yet this presumption would not he conclusive; it would only be prima facie, and might be overcome by circumstances tending to show that the company did not accept; such, for instance, as that it never took possession of the premises or exercised dominion over them, and delayed for an unreasonable time appropriating them to the.use contemplated by the grant. It would he extremely harsh and arbitrary logic to infer, with the force of a conclusive presumption, that because the company invited the city to consent, it thereby gave the city a carte-blanche to fix any terms, conditions or limitations it might choose to impose. 2. There can be no doubt that if the Macon & Brunswick company accepted the grant on the terms fixed by the city council of Macon (and it could accept on- no other), it was with the limitation that the estate acquired was to exist only so long as the property was nsed for the purposes specified in the act. Such a limitation is distinguished from an ordinary condition subsequent, inasmuch as it marks the limit or boundary beyond which the estate. conveyed could not continue to exist. 2 Black. Com. 155-6 ; -2 Minor’s Inst. 263; 2 Washb. Real Prop. 23-5 (*457-9); Smith on Exec. Interests, §§34-42; 2 Kent Com. 129; Henderson vs. — 510 — Hunter, 59 Pa. St. 385; Ashley vs. Warner, 11 Gray, 43. Were the mode of use, however, not a special or collateral limitation, as we consider it, but a condition subsequent, the use would have to be begun within a reasonable time in order to save the estate from forfeiture. Haden vs. Inhab. of Stoughton, 5 Pick. 528; Allen vs. Howe, 105 Mass. 241; Hamilton vs. Elliott, 5 Sgt. & Rawle, 374. According to some authorities, a grant made for a charitable use is not foi’feited by nonuser. McKissick vs. Pickle, 16 Pa. St. 140; Pickle vs. McKissick, 21 Id. 232. Here there was no charitable motive or object involved; and as we have seen, the grant was not made by the General Assembly as a donation or gratuity. Nor can we suppose that it was intended as such by the municipal authorities of Macon. Nothing was paid for it directly by the company, and no consideration is expressly mentioned in the documents relating to it; but there can be no doubt that local benefits were in contemplation, which benefits could be realized only by the use of the property in the manner specified. As long as the company held it with a view to improve and use it in that manner, the holding was not inconsistent with the terms of the grant; but after the lapse of a reasonable time, under all the circumstances, for the actual use to commence, if it did not commence the company’s estate was terminated ipso facto, if the words relating to the use be construed as a limitation, and if construed as a condition subsequent, the estate was forfeited, or became subject to forfeiture upon entry made or action brought in behalf of the proper party. In some jurisdictions, the question of reasonable time seems to be for decision by the courts ; but under our system, where, as in this case, some of the facts bearing upon the case are not evidenced by writing, we think the solution of the question is for the — 511 — jury. If the grant had been otherwise paid for by the company, it might well be said that no question of reasonable time would be involved, or if involved, that a very remote time would be reasonable. But any and all other considerations being wanting, it results that a period of time reasonably necessary for the purpose under all the circumstances, must have been in contemplation ; for otherwise the property might have gone out of .use altogether. If the company could bold it beyond a reasonable time without commencing the use, it could do so for all time. So that if reasonable time be not the limit to non-user, there is no limit whatever. It follows from what has been said, that if a reasonable time bad elapsed before the assets of the Macon & Brunswick Railroad Company were seized and sold out, that company bad lost the grant, and these premises were not its property at the time of the sale. But if a reasonable time bad not elapsed, the company now claiming as its successor would be entitled to any additional time required when added to the time already elapsed when it succeeded to the former company’s rights, to complete the period. And if when this action was brought the period of reasonable time was complete, whether completed whilst the right was in the former company, or not until the latter acquired it, the present action was maintainable, provided it was brought by the 'proper party. 3. We have no doubt whatever that the proper party to bring the action was the Mayor and Council of the City.of Macon. The corporation bad the title under the act of 1856, save in so far as it parted with the same under the act of 1863. The State never has resumed the title to any part of the Macon Reserve, but on the contrary, by the act of 1866, (acts of 1866, p. 89,) has for a consideration, to wit, $10,000, paid by the — 512 — authorities of the city of Macon, relinquished to the city council all the State’s contingent interest, and vested the same in the mayor and council. We do not cite this last act as legislation necessary to the conclusion which we have reached; for whether the'title of the railroad company was terminated by limitation or by condition subsequent, the title would go back to where it was under the act of 1856 ; and if re-entry or suit was necessary to such a restoration of title, the proper party to re-enter or to bring suit would be the city of Macon, and not the State. Except such matters as are involved directly or indirectly in the points we have discussed, we find no error in the record which we deem material, and we leave the new trial which must be had to take place under such light touching the law of the case as has been shed by this opinion. Judgment reversed.