Coast Line Railroad v. Cohen , 50 Ga. 451 ( 1873 )

McCay, Judge.

1. The decisions of the Courts, both in England and America, are quite uniform, that in the case of a purely public nuisance, where no private person receives damage special to himself, the Courts will not interfere, either to enjoin or abate, at the suit of a private individual. The proceeding in all such cases must be in the name of the public. In England, and in most of the States, ®ere is an information by the Attorney General, and the reason of the rule is plain. If the injury is purely a public one, it is one for the public to complain of. No private person has, or ought, to have, a right to take charge of the rights of the public. A judgment, either pro or eon, would bind nobody, since every other citizen has the same right to sue as the moving party, unless, indeed, the rule should exist that the first private person suing should obtain an exclusive right, and a judgment between him and the party complained of bind the world — a rule, however, that would, we think, work badly. The old rule, and one, as we have said, universally adopted, is the one we have stated. Kerr on Injunctions, 334; Waterman & Eden on Injunctions, 1 vol., 282. It was contended, in argument, that this case might fairly come within that rule which allows a tax-payer to file a bill in his own name.against city authorities which are misapplying public funds, as an abuse of a trust: Dillon on M. Cor., sections 729, 730. But, so far as we can find, this privilege only extends to a misuse of public property, and there is no case where it has been extended to an obstruction or misuse of the streets, except where special damage has come to the complainant, and even then only his rights are disposed of by the judgment.

2. In this case one of the complainants is, by the amendment, alleged to be a lot owner on one of the streets. We recognize the distinction between the rights of the public and the private rights of a lot owner on the street to a free passage to and from his property on the street. This is a private right distinct from the right of the public, and a suit will lie for the protection of this right, even where the nuisance is also a public one. But the bill sets forth no damage, or threatened damage, to the lot. Prima fade, a street railroad, properly laid down, is a benefit instead of an injury to the property holders on the street, and it is not sufficient to justify the interference of equity, for a lot owner to charge that the railroad will injure his lot. Facts must be set forth, specifications of the injury made, so that an intelligent mind may understand how and to what extent there will be injury. The railroad company may take issue with the charge, and is entitled to details so that it may reply.

3. But we do not think the charges in this bill make out even a case of a public nuisance. A street railroad so laid as to be even with the street, and properly laid and kept in order, is no obstruction to the ordinary use of the street. As all experience shows, it is a very desirable and proper use of a street, and one that cities are every day more and more anxious for. The franchise consists rather in the right to the exclusive right to the track than in the right to lay the track.

This company has a grant from the Legislature to lay down a track from such point within the city to the terminus on the seaboard, by way of the cemeteries, as the City Council may prescribe. No special mention is made of streets in the charter, but the very nature of the enterprise to connect the city with the cemeteries, and the reference to the City Council for an initial point within the city, indicate to our minds a fair intent that the use of the streets for the purpose is within the scope of the charter. The right to run the road from some point within the city is granted by the charter. That point has been fixed by the Mayor and Council, as the Act incorporating the company provides. How are they to get from that point to the city boundary ? It would be impossible to do this without using the streets in some way, either by crossing them or by running the road through them. But most fairly we think the intent of the Legislature was that, with the consent of the city authorities, the streets were to be used. Nor do we feel authorized to say that because the Act of 1866 excepted the streets having squares in them from the scheme then contemplated, the same intent is to apply to this Act. There is in the Act incorporating the Coast Line Company no restriction. The initial point is any place within the city consistent with the route to the coast by way of the cemeteries. The precise point is left with the Mayor and Council, and there is no limitation of the point to some street or streets not having squares. Doubtless, when the city authorities applied for and obtained the authority to lay down street rails, at first they were themselves averse to such a use of the squares; but experience and observation seem to have satisfied them that this use is not hurtful to those ornaments of the city. Another Legislature may well give a new grant. The Act of September 28., 1868, ratifying the act of the city granting privileges under the Act of December 21, 1866, to the Skidaway Company, does not, as it seems to us, have any significance on this point, since, obviously, there was no call on this ratifying Act, to go further than the city had gone, or had authority to go, in its ordinance granting to the Skidaway Company the right to connect its line with the streets. We can hardly suppose the Legislature to have any policy in reference to the squares of Savannah. Practically, this matter must always lie within the control of the city, through the Legislature. What the city, the people of the city, desire, will and ought, unless vested rights prevent, to be granted by the Legislature. And we think no argument, based on any indication of State policy, can arise.

Judgment reversed.