Cherokee Mills v. Standard Cotton Mills , 138 Ga. 856 ( 1912 )

Lumpkin, J.

1. Without entering into a discussion of authorities in other jurisdictions on the subject of parol licenses and easements, section 3645 of the Code of this State declares the following rule: “A parol license is primarily revocable at any time, if its revocation does no harm to the person to whom it has been granted; but is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easement running with the land.” See also Sheffield v. Collier, 3 Ga. 82; Mayor &c. of Macon v. Franklin, 12 Ga. 239; Winham, King & Aldridge v. McGuire, 51 Ga. 578; Baker v. McGuire, 53 Ga. 245; Ainslee v. Eason & Waters, 107 Ga. 747, 749 (33 S. E. 711); Hiers v. Mill Haven Company, 113 Ga. 1002 (39 S. E. 444); Brantley v. Perry, 120 Ga. 760 (48 S. E. 332).

In the ease before us it was alleged, that there was a spur-track from the main line of a railroad across the land of the Standard Cotton Mills and upon the land of the Cherokee Mills; that when the track was extended upon the grounds of the Cherokee Mills, the officers of the Standard Cotton Mills, representing it, agreed with the officers of the Cherokee Mills, representing it, that if the latter company would erect a plant for the purpose of making yarns into finished products, the spur-track should extend through the property of the former company on to that of the latter • and remain there permanently; that the Cherokee Mills erected and equipped its mill at a large expense, on the faith of the understanding and agreement that it could have the spur-track to use for bringing in raw material and supplies and shipping out its finished products; that the track was useful and necessary for that purpose; and that, owing to the situation of the mill and the topography of the surrounding country, it had no other method of ingress and egress, unless at great expense. It was alleged that the railroad company could not have removed the spur-track without the consent of the Standard Mills. Thus the allegation was, in effect, that the Standard Cotton Mills had a permanent right to have the track remain there, and that it granted a license to the Cherokee Mills, and on the faith of it the latter expended large sums. Under the authorities cited above, this was sufficient to give to the Cherokee Mills an easement in the track and its use as against the Standard Cotton Mills.

2. It was also alleged that it was further agreed, that, when the mill of the Cherokee Mills should be erected, the Standard Mills would furnish power to the Cherokee Mills upon the latter paying»therefor; and also that the erection of the Cherokee Mills furnished an additional customer for the Standard Mills, and that the former purchased a large quantity of yarns from the latter. But neither of the facts last mentioned was alleged as a condition of the acquirement of a license or easement. They seem to have been added to the agreement on which the easement was claimed, as matter of inducement, showing the advantage to the Standard Mills of having the Cherokee Mills built, and that the former expected to acquire a good customer by reason of the erection of the new mill. Counsel for the defendant in error urged that these agreements were vague, unilateral, and unenforceable. The present ease, however, did not involve an effort to enforce an executory contract, but to claim an easement by reason of the grant of a license accompanied by the expenditure of large sums in connection with its- use. The decisions in Morrow v. Southern Express Co., 101 Ga. 810 (28 S. E. 998), and other like cases have no application to that under consideration. Nor is the decision in Swan Oil Co. v. Linder, 123 Ga. 550 (51 S. E. 622), controlling in the present case. In that case there was an effort to obtain a decree of specific performance of an executory contract, compelling a person, who was alleged to be operating a railroad as a lessee, to execute to the plaintiff a lease of a right of way to build a spur-track connecting with the railroad, with a prayer that, if the plaintiff v could not obtain such a decree, it should recover damages. The spur-track was never built, but it was alleged that the defendant had promised one of the promoters of the plaintiff company, that, as soon as the latter company should be incorporated, the defendant would deed to it the right of way. Without referring in detail to the reasoning in the opinion filed in that case, it will readily be perceived that it differs widely in its facts from the one before us. Here it was alleged that it was agreed that a spur-track should be laid and remain permanently, if the Cherokee Mills would erect a mill; that the agreement was executed, the track being laid and the mill being erected at large expense.

3. If, under the allegations of the petition, the Cherokee Mills obtained an easement, should it be treated as an easement appurtenant to the mill property, or as an easement in gross, that is a mere right or privilege in the Cherokee Mills, not appurtenant to the land or passing with it? In Taylor v. Dyches, 69 Ga. 455, it was said that “Private ways are never presumed to be personal when they can be construed to be appurtenant to the land.” Considering the nature of this easement, its utility for the advantageous operation of the mill, and the shipment of its products, it seems clear that the purpose of the parties was not merely to create a privilege personal to the corporation, but an easement beneficial and appurtenant to the mill property.

4. There was nothing to show any intention to abandon the easement. The suit was brought both by the Cherokee Mills and certain individuals. By amendment it was alleged that the indi-' viduals purchased the assets of the Cherokee Mills' before the track was removed, and owned the mill and its site and all the easements connected therewith.

5. It was urged that it appeared that the railroad company took up the spur-track from the Cherokee Mills property, and that it did not appear that they had no right to do so. This contention is not well founded. It was alleged that the defendant company owned the land between the main line of the railroad and the property of the Cherokee Mills; and that the spur-track was actually laid down, and could not be removed without the consent of the defendant. It was also alleged that the railroad company did not remove the track of its own accord, but at the written request of the defendant company. Thus, according to the allegations of the petition, the defendant granted an easement and then caused the railroad company to destroy it, in connection with its own purpose to erect a building, and thus caused damage to the plaintiffs’ property. Stovall v. Coggins Granite Co., 116 Ga. 376 (42 S. E. 723).

The order in the record sustaining the demurrer appears to be sufficiently broad in its terms to- cover both the general and special demurrers. But it was recited in the bill of exceptions that the order sustained the general demurrer, and counsel for both parties stated in their briefs that only the general demurrer was passed upon, and neither of them referred to or argued the grounds of the special demurrer. We will therefore deal with the case on that basis, and determine only the questions thus urged. Nor was there any 'question of misjoinder of parties argued. As against a general demurrer, the petition set out a cause of action, and it was error to sustain such demurrer and dismiss the case.

Judgment reversed.

All the Justices concur.