Murphy v. Central of Georgia Railway Co. , 135 Ga. 194 ( 1910 )

Beck, J.

The dispute between the parties in this ease is over a strip of land 20 feet in width and about 1,381 feet in length, extending from Glenn street on the north to Shelton street on the south, in the City of Atlanta, the issue being as to whether the same constitutes the eastern edge of a 100-foot right of way of the defendant railroad company or the western third of a 60-foot public road for said distance. The plaintiff, in 1881, acquired title to the lands tying east-of and abutting on the strip of land in dispute. He alleged, that at that time this 20-foot strip was a road traveled by the public, and had been so used for more than twenty j^ears; that in 1884, upon petition of citizens, the commissioners of roads and revenues of Fulton county passed an order formally opening and accepting the same as a public road; that upon the passing of this order the petitioner and other abutting landowners on the east, desiring that the read in front of their property should be 60 feet in width, dedicated an additional 40-foot strip for that purpose, adjoining said 20-foot road; that the county authorities took charge of and worked the entire 60-foot road; and that the same has ever since been a public road. A short time prior to the bringing of this suit the defendant railroad company began changing the grade of the 20-foot strip in question and laying its tracks thereon, and the plaintiff idled suit to enjoin any further interference with the alleged 60-foot road in front of his lairds and the use of any portion of same by the defendant as its right of way.

The defendant denied the plaintiff’s contentions, and claimed: that its predecessor in title, the Monroe Railroad & Banking Company, some time prior to 1845 duty acquired title by contract to a 100-foot right of way which included the 20-foot, strip in controversy, built its line of road thereon, and maintained said 100-foot right of way until, in 1846, the same was sold to the Macon & Western Railroad Company; that the last-named company kept the said right of way 100 feet wide, clean of all growth, and used the same to operate a railroad thereon, placed telegraph poles and mileposts, dug ditches, built embankments, etc., until it was succeeded by the Central Railroad & Banking Company in 1873; that the Central Bailroad & Banking Company used and maintained said 100-foot right of way in the manner above stated until succeeded by this defendant in 1896; and that this defendant has ever since been in continuous, uninterrupted, and peaceable possession of said strip and right of way until the filing of this suit, operating its railroad thereon, keeping the same clear of obstructions, planting poles and posts, grading, and in various other ways using said right of way, including the 20-foot strip' in controversy, for more than seven years prior to the bringing of this suit.

The jury returned a verdict for the defendant. The plaintiff’s motion for a new trial was overruled, and he excepted.

1-5. The rulings made in the first five headnotes do not require elaboration.

6. It is complained that the court erred in refusing a written request to give in charge to the jury the following: “ Any uninterrupted use by the public generally of lands ás a roadway for a period of time extending through 20 years, accompanied by acceptance by public authorities, gives a prescriptive right to the public to such road or highway.” We do not think that the failure of the court to instruct the jury in the language of the request was error. It is manifest that the charge which the court refused to give is ambiguous. It is susceptible of two constructions. First, it might be construed to mean that an uninterrupted use by the public generally of lands as a roadway for a period of time extending through 20 years, accompanied by acceptance by the public authorities extending through that period of time, from the beginning to the end thereof, would give a prescriptive right to the public to such road. Second, it might be construed to mean that an uninterrupted irse by the public generally of the strip of land in question as a roadway for a period of time extending through 2Q years and acceptance by the public authorities at any time within that 20 years, even at or near the close of that period, would give a prescriptive right to the public to such road. These two constructions embody very different statements of the law upon the question involved. If the first construction which might have been placed upon the written request was the statement of the law desired by counsel offering the request to charge, then the principle embodied in the request was sufficiently covered by the charge as given; and as the court might fairly have placed this construction upon tlie written request, lie should not be held to have committed error in refusing to give another charge upon a subject which was already sufficiently covered by his charge' as given. If counsel had desired a charge laying down the doctrine as stated in the second construction of the written request, he should have framed it in teyms more aptly embodying the principle which he sought to have incorporated in the court’s instructions.

7. The other requests to charge, so far as such requests were legal and pertinent, were covered by the general charge. No error is shown in the other rulings of the court complained of; and the minor inaccuracies in the statement of the contentions of the parties were not of sufficient materiality to be cause for the grant of a new trial. Judgment affirmed.-

All the Justices concur.