Central of Georgia Railway Co. v. Standard Fuel Supply Co.

Evans, P. J. (After stating the foregoing facts.) It is not in dispute that the railroad-track known as the River Street track, a part of which the petitioner contends is laid over its land, is the connecting track between the Tybee branch of the defendant company and the Atlantic Coast Line on the east of the city, and the defendant’s main-line tracks and yards on the west of the city, and that it furnishes railroad-track facilities to all the wharves on the water-front, between the Central and Atlantic Coast Line terminals. It is also without dispute that the track was built and in use by the railway company in the conduct of its business as a public carrier for several years prior to petitioner’s purchase of the land, over a part of which it claims that the track was laid. So far as the present record discloses, the landowner neither protested against nor assented to the construction of the railroad. As [95] between the city and tbe petitioner it has been judicially determined that River Street, where lot 1 of Reynolds ward abuts it, is twenty feet in width. Mayor and Aldermen of the City of Savannah v. Standard Fuel Supply Company, 140 Ga. 353 (78 S. E. 906). The limits of lot 2 are controlled by the same facts as those of lot 1; so that, so far as these two lots are concerned, River Street is to be taken as twenty feet wide in front of these lots. The railroad-track is located south of the dedicated street twenty feet in width, and upon the property which petitioner purchased after its construction. When a railroad company builds its tracks for the operation of a railroad thereon, with the consent of the landowner, it acquires an easement for that purpose. If the landowner, knowing of the construction of the track on his land, remains inactive and permits the railroad company to go on and expend large sums in the work, or permits the completion of the railroad, he will be regarded as having acquiesced in the construction. Roberts v. Northern Pacific R. Co., 158 U. S. 1 (15 Sup. Ct. 756, 39 L. ed. 873). The railway company has an easement of right of way over lots 1 and 2 for the operation of a railroad as a public carrier. The right of way is limited to an occupation and use reasonably demanded for the transaction of the business, to which the owner impliedly assented when he allowed the track to be built and a railroad operated thereon. The petitioner, being a subsequent vendee, purchased the property with the burden of the easement. Green v. Southbound R. Co., 112 Ga. 849 (38 S. E. 81); Allen v. M., D. & S. R. Co., 107 Ga. 838 (33 S. E. 696); McLendon v. A. & W. P. R. Co., 54 Ga. 293; Charleston &c. R. Co. v. Hughes, 105 Ga. 1 (30 S. E. 972, 70 Am. St. R. 17); A., K. & N. Ry. Co. v. Barker, 105 Ga. 534 (31 S. E. 452). As the owner of the servient estate, the petitioner has the right to object to any enlargement of the easement. The extent and limitations of the easement are to be determined by the special facts of the case (many of which are in dispute); and the judge did not abuse his discretion in preserving the status until the facts were established at the final hearing. With reference to the contentions of the parties as to the width of River Street in front of lot 3, it is an issue of fact whether the petitioner’s land is bounded by a street twenty feet in width, or one of greater width, and that issue was properly left for decision [96] on tbe final hearing. Likewise it is in dispute whether the planking between the tracks, and on each side of it, was taken up at the instance of the petitioner by the railway company with the intention of .abandoning its use; and this matter was also properly left for determination at the final hearing. Neither is it necessary to inquire into the railroad’s contention of prescriptive title to the locus, as that contention is based on facts which were in dispute at the interlocutory hearing. Certain maps were introduced in evidence, which related to River Street and abutting property east of Lincoln Street. These maps did not illustrate any contention of the parties, as the locus is west of Lincoln Street. They should have been rejected as irrelevant, but their admission in evidence will not require a new trial. Judgment affirmed, All the Justices concur, except Fish, G. J., absent,• and