Central of Georgia Railway Co. v. Bibb Brick Co.

Lumpkin, J. From the foregoing statement of facts it will be seen that the act of 1913 expressly declared, that, if the mayor and council should authorize the closing of Pine Street between Fifth and Sixth Streets, a street should be opened by the railway company from Fifth Street to Sixth Street by way of Plum Street, which should be of the width of Plum Street, viz., sixty-six and two thirds feet wide; and that the title to such street should be vested in the mayor and council “before any of the terms of this act shall become operative.” It was also declared that the mayor and council should “have full power and control over said street, and with full power to require the construction and maintenance of viaducts or underpassage for railroad-tracks, whenever in its dis [155] cretion the public necessities shall require.” Thus the opening by the railway company of a new street sixty-six and two thirds feet in width, connecting Plum and Pine Streets, and the vesting of the title thereto in the mayor and council, was distinctly made a condition precedent before any of the terms of the act should become operative. The conferring on the mayor and council of the further power to require the construction and maintenance of viaducts or underpassage, whenever in their discretion the public necessity should require this to be done, did not authorize them to accept a new street forty feet in width for a portion of its length, instead of sixty-six and two thirds feet in width, and narrowing to an underpass twenty-one feet wide. Not only did the legislature declare in terms what should be the width of the new street, and make its opening and the vesting of title to it in the city a condition precedent, but care was taken to reiterate that the railway company should have no right or title to any of the property described in the act or right to close any of the streets mentioned, “or any part thereof,” until it should have “faithfully complied with all the terms and conditions of this.act.” The mayor and council were authorized to enter into a contract with the railway company upon such terms and conditions as might be prescribed by it, “not in conflict with the terms of this act;” and, as if to be certain beyond peradventure that the railway company must comply with the terms of the act, and that the mayor and council should not be authorized to contract otherwise, it was again declared that the railway company should acquire no right to close any of the streets sought to be closed, or acquire any title to any of the lands in said streets and alleys, “except upon its faithful compliance with all the terms and conditions of this act and of the contract with the Mayor and Council of the City of Macon herein provided for.” The contract might add other terms, but it could not change or destroy those expressly imposed by the act itself. In the contract the railway company agreed to construct a subway under the existing and proposed tracks at Pine Street in the vicinity of Sixth Street, and to open a street connecting such subway with Plum Street, such new street to be forty feet in width for some distance, then turning and having a width of not less than thirty-five feet, and gradually narrowing to conform to the width of the subway at its entrance, the driveway through which [156] was to be twenty-one feet in' width, with an elevated four-foot sidewalk. Also in a succeeding paragraph it was stated that the plans and specifications for the subway should be approved by the city engineer, and that, when it should be completed and opened for public travel, the title thereto as well as to the streets emerging therefrom should, without further instrument of conveyance, be vested in the city, and that thereupon the railway company might close that part of Pine Street between Fifth and Sixth Streets. But in a still later paragraph of the contract it was declared that all of the grants, rights, powers, privileges, and conveyances from the mayor and council to the railway company, contained in the contract, were made upon the express condition that the title to the property should not pass and vest in the railway company until it or its successors or assigns should have “faithfully complied with all the terms and conditions of this contract, as well as said act of the General Assembly of Georgia, approved August 18, 1913, . .. which act is hereby referred to and made a part of this contract.” It seems to us plain that under the act of 1913, and the contract made between the mayor and council and the railway company, there was no authority for closing up a portion of Pine Street without first opening a street sixty-six and two thirds feet in width, and that this requirement constituted a condition precedent. Was this changed by the act of July 30, 1915 (Acts 1915, pp. 692, 696) ? In section 8 of that act it was declared that the contract which had been entered into between the mayor and council and the railway company, was “ratified and approved,” but it did not purport in terms to amend the act of 1913. In section 9 it declared that the City of Macon was authorized and empowered to grant,-upon such terms and conditions as might be prescribed by the mayor and council, to the railway company, its successors and assigns, certain parts of streets, one of them being the “full width of Plum Street between Fifth and Sixth Streets, except the forty (40)-foot street provided for in article six of the contract of October 27, 1914.” Nothing was said as to the closing of a part of Pine Street which was in a southerly direction from Plum Street and apparently parallel with it. Authority was given, in section 10, to modify and amend the condition on which the title to certain portions of the property included in the con [157] tract, or which might be granted under this act, should vest in the grantee, by eliminating a stated condition and inserting another in lieu of it. But in the next section it was declared that nothing in this act should relieve the railway company from any of the obligations or liabilities cast upon it or assumed by it under the acts of August 18, 1913, and August 12, 1914, or any order of the railroad commission with respect to the building of the union passenger-depot, or from any of the obligations or liabilities resting upon it under the contract of October 27, 1914; “but every such obligation and liability, except in so far as they may be modified by contract between the City of Macon and the Central of Georgia Railway Company to the extent authorized by this act and to no greater extent, shall remain of full force and effect as against the Central of Georgia Railway Company,” etc. It does not appear that the contract was in fact modified to the extent authorized by the act of 1915, but it stands as originally made. This was not sufficient to operate as an amendment of the act of 1913, so as to permit the closing of a part of Pine Street as now proposed. From what has been said it follows that the presiding judge did not err in holding, in effect, that the closing up of Pine Street, as intended, would not be lawful. There was evidence tending to show, that, under a lease from the city, the plaintiff occupies certain land southeasterly from the point at which it was intended to close a part of Pine Street; that it manufactures brick; that the lease under which the plaintiff holds authorizes the operation of a manufacturing enterprise there; that while the land occupied by the plaintiff does not abut directly upon Pine Street, it is very near thereto, and that street is the only one by which the people of Macon who are customers of the plaintiff can have convenient access to its plant, and by which the plaintiff can deliver its manufactured products to its customers in the city; that the closing of Pine Street between Fifth and Sixth Streets to travel and traffic would work substantial injury to the plaintiff’s business and property; that'certain other streets by which it was contended that the plaintiff could reach the center of the city were merely streets on paper; and that though there were other means of access to and egress from the plaintiff’s plant into the business and residence portions of the city, such means were [158] much more difficult and expensive to use in the hauling of its manufactured products. There was also evidence that the plaintiff and another manufacturing company, which likewise sought to obtain an injunction, were the only persons located at that place; that nobody would be affected by the closing of Pine Street except them; and that the general public would not suffer any damage, except those who might have business with these companies. Under the evidence, the presiding judge was authorized to grant the interlocutory injunction. Harvey v. Georgia Southern & Florida R. Co., 90 Ga. 66 (15 S. E. 783). The present case is not controlled by the decision in Ward v. Georgia Terminal Co., 143 Ga. 80 (84 S. E. 374). There an alteration and change of grade of a portion of a street in a city was permitted and sanctioned by lawful authority; the land the value of which was lessened was upon another part of the street, beyond a cross-street; and the landowner had the same communication to other parts of the city through intersecting streets, though with less convenience, over the street which was altered. Here the conditions upon which a part of Pine Street could be dosed have not been complied with; and there is evidence from which the presiding judge might find that the plaintiff did not have the same communication to other parts the city through intersecting streets, merely with greater inconvenience. The view which was taken by the presiding judge and the ruling above made render it unnecessary to consider the attacks made upon the validity of the act of 1913, on the ground that it violates certain provisions of the constitution. The admission of the evidence complained of in the seventh and eighth assignments of error was not error for the reasons assigned. If any part of it or that set out in the ninth assignment of error was erroneously admitted, this ruling was not such as to require a reversal of the judgment. Judgment affirmed. All the Justices concur.