Atlantic & Birmingham Railway Co. v. Kirkland

Fish, C. J. (After stating the facts.) 1. The petition set forth a cause of action. The allegations [557] thereof were sufficiently specific, and therefore the court did not err in overruling the demurrer thereto. “Where a railroad company to which has been given the power to choose its particular route between designated termini has exercised its discretion in this regard, its power of choice is exhausted, and it can not subsequently change its location without express legislative authority.” Brown v. Atlanta & Birmingham Ry. Co., 126 Ga. 248. The defendant as the successor to the original company locating and constructing the line of road between Guysie and Nicholls, some six and a half miles in length, could not at its mere volition tear up that section of the road and relocate the same at a different place, although the portion of the road sought to be taken up and relocated lay outside the limits of the town or city. Ib. And if petitioners, as they allege, would suffer special damages, not merely as members of the public, but by reason of their residences and the location of their businesses, and investments, and shipments made by them, an action would lie in their names to prevent the tearing up and removal of the road. Ib. 2. It is clear, we think, that the court erred in striking so much of the defendant’s answer as specifically denied the allegations of the petition; for even though the petition set forth a cause of action, petitioners could not recover, without proof, if the answer denied the petition, as the burden would then be upon them to prove the case alleged. Neither should that portion of the answer have been stricken which set up an affirmative defense to the effect that petitioners had, by their laches, lost the right, if any they originally had, to an injunction. A party is not entitled to an injunction when, with full knowledge of his rights, he has been guilty of delay and laches in asserting them, and has negligently allowed large expenditures to be made by another party on whom great injury would be inflicted by the grant of the injunction. Holt v. Parsons, 118 Ga. 895; City of Elberton v. Pearle Cotton Mills, 123 Ga. 1. The case should have been submitted to a jury for the determination of the issues made by the specific denials in the answer to the allegations in the petition, and by the affirmative defense set up in the answer. When this case was formerly before this court (126 Ga. 246), the judgment affirming the refusal of an interlocutory injunction was based upon the ground that the decision of the trial judge did not rest aione [558] upon questions of law, but also depended upon certain material issues of fact, on which issues there was conflicting evidence. Judgment reversed. All the Justices concur, except Holden, J., who did not preside.