Louisville & Nashville Railroad v. Merchants & Farmers Bank , 166 Ga. 310 ( 1928 )

Hill, J.

1. Tlie petition as amended alleged that the main-line track and spur-track had been maintained along Wayne Street for thirty years without any express municipal authority. On May 20, 1927, the Mayor and Aldermen of the City of Milledgeville passed a resolution requesting the Milledgeville Railway Company and its lessees to relocate its railroad-track in Wayne Street by placing the same in the center of said Wayne Street and conforming .the same to the grade of the street as established by the city engineer. After the filing of the original petition the city passed a resolution granting and empowering the Milledgeville Railway Company “the right to relocate the switch, frog, and lead of said spur-track in such position on Wayne Street as to permit the proper connection with said spur-track with the main track of said company.” H eld :

[а) The Civil Code (1910), § 2589, provides that no railroad company in this State shall have power to change its line of railroad “in any town or city after the road has been constructed, without the consent of such town or city expressed through its proper authorities,” etc.

(б) The provisions of the ordinances above referred to, in regard to the change of the location of the main-line track from the east side of Wayne Street to the middle of that street, and the change of connection of the spur-track therewith, were sufficient to express municipal authority to so change the location of said track and employ the same in the operation of the railroad. .

2. “Although the General Assembly may empower a commercial railroad company to occupy the streets of a town or city with the consent of the municipal authorities, yet such permission is subject to the constitutional restraint that ‘ private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.’ ” “If the property of an abutting-land owner will be damaged by the laying and use of a track in the street, the railroad company must first pay or tender to such property owner just and adequate compensation for the damages consequential upon the construction of the track, and the uses to which it will be put. Upon failure to pay or tender the amount of such damages, equity will enjoin the construction of the track.” Athens Terminal Co. v. Athens Foundry, 129 Ga. 393 (3, 4) (58 S. E. 891).

(a) If the proposed change in the connection of the spur-track with the main-line track as relocated would cause the spur-track in front of the plaintiff’s property to be nearer to said property than as originally located, the effect of which would be to cause consequential damage to the plaintiff, it would be the duty of the railroad company to ascertain and pay or tender all such consequential damages; and if the railroad company proceeded to make a change in the location of the spur-track without having paid or tendered payment of the consequential damages to the plaintiff, equity will enjoin such change in the location of the spur-track.

No. 6123. May 16, 1928.

(6) The petition as amended alleged a cause of action, and was not subject to demurrer.

3. Under application of the principles ruled in the preceeding notes, the judge did not err in granting the interlocutory injunction.

Judgment affirmed.

All the Justices concur. Gumming & Harper, Hines & Carpenter, Jones, Jones & Johnston, and J. A. Lowrey Jr., for plaintiff in error. Allen & Pottle, contra.