Waters v. Baker , 190 Ga. 186 ( 1940 )

Although a parol license for the use of land is revocable at any time if its revocation does no harm to the licensee, yet where the licensee has executed it and in so doing has incurred expense, it is irrevocable and becomes an easement running with the land. The defendant Waters, a grantee of the owner with notice, holds the land subject to the easement.

No. 13221. APRIL 11, 1940. G. W. Baker and J. B. Barrentine, doing business under the name of, and hereinafter referred to as, the Baker Lumber Company, instituted suit against H. J. Waters and the Macon, Dublin and Savannah Railroad Company, seeking to enjoin the former from interfering with the use of a spur-track, and to enjoin the latter from discontinuing its service over the spur-track; and for general relief. It was alleged, in substance, that petitioner is the owner and operator of a sawmill and lumber business located in the town of Danville, about ninety-eight per cent. of the output of which is shipped over the line of the defendant railroad; that its mill enterprise is connected with the main rail line by a spur-track leading from the station in Danville; that the spur-track passes over land owned by defendant Waters, to which he acquired title on January 11, 1928, long after the spur-track had been built across the land; that the spur-track was built by the railroad about twenty years ago, and has been in quiet, peaceable, adverse, and uninterrupted possession of the railroad since that time; that on November 27, 1937, Waters without lawful right notified the railroad company to cease using the spur-track that traverses his land after December 1, 1937, and the railroad has threatened to discontinue service to petitioner over said track because of the objection of Waters; that Waters has no right to interfere with the use of the spur-track; and that its discontinuance will work irreparable injury to petitioner.

The railroad company answered, adopting the allegations of the petition, with some minor corrections, and averring that it has discovered that Waters has no right to interfere with its use of the track in question; that in 1920 Danville Lumber Company, a predecessor in title of plaintiff to both the sawmill properties and an interest in the spur-track, entered into a contract whereby it was agreed that the railroad would alter its other side-tracks in Danville and construct the spur-track in question, and Danville Lumber Company would reimburse it for all costs of constructing the spur-track and for keeping it in repair, as well as give permission to build it over land owned by the lumber company, and obtain consent of F. E. Johnston to build it over the land now owned by Waters; that pursuant to this contract the road was built, and the side-tracks of the railroad were altered, at a great expense to the railroad; that the track in question has been used continuously ever since; that the contract provides that the railroad shall serve others over this particular track; and that considerable expenses were incurred by the lumber company and by the railroad to construct the spur-track in order to enjoy the license given by the owner of the land, F. E. Johnston, and by reason of this fact the license became irrevocable, and the railroad now has the unqualified right to use the right of way without interference from Waters or any one else. It was further alleged, that in June, 1927, Danville Lumber Company sold its properties to F. C. Taylor, and with the consent of the railroad assigned its interest and rights in the contract with the railroad concerning the spur-track in question; that in June, 1936, F. C. Taylor sold the lumber business to the plaintiff, Baker Lumber Company, including the rights, franchise, easements, and other properties incidental to the business, and including the track materials constructed across the lands of Waters; that about June 1, 1936, the plaintiff and this defendant entered into an agreement whereby all interest, title, and rights of the plaintiff in and to the spur-track and right of way were transferred to the railroad; and that in 1928 Waters acquired title to the land involved, with full knowledge of the existence of the spur-track thereon, and subject to the burden thereon of the railroad-track and its use by this defendant. It was prayed that this defendant be decreed to have an easement and right of way over the lands of Waters, to use the same and so much land on either side thereof as is necessary to the full enjoyment of the track; that plaintiff be given a similar easement; and that Waters be enjoined from interfering therewith.

In his answer Waters denied that either the plaintiff or the railroad company had an easement on his land. He admitted that he did not own the land when the track was built, that he acquired title several years thereafter, and that he knew of the existence of the track when he purchased the land. He denied that the railroad expended funds in constructing the track, and averred that all expenses were borne by the lumber company. He admitted that F. E. Johnston, who owned the land when the track was built, consented to the construction of the track, but alleged that he reserved the right to revoke the license at will, that the land actually used by the track was of the value of $40, and that the presence of the track prevented him from erecting tenant houses on the land not occupied by the track, and consequently damaged this land in the sum of $487; and he asked that if the court held that plaintiff and the railroad had a right to continue using the premises, he have judgment for the alleged damages.

Upon the trial the evidence showed, without dispute, that F. E. Johnston gave his unqualified consent to the construction of the spur-track over the land now owned by Waters; and Johnston testified that this consent was without "any strings tied to it;" that the expenditure of considerable money was necessary to construct the track which was necessary to the enjoyment of the license to use the land; that Waters acquired title to the land in 1928, more than seven years after the track was constructed and put in operation; that the track has been in continuous use since its construction, except that when the lumber business changed hands it was not used for a month or so while the new owner was getting its operation in order; that the public was authorized to use the track; and that defendant Waters at one time stated his intention to use it with reference to hauling some poplar. The court directed a verdict and decree that the plaintiff and the railroad have an easement in the use and enjoyment of the side-track constructed across the land of Waters, and that they were entitled to the injunction as prayed. Waters excepted to the overruling of his motion for new trial. The point of controversy here involved is the use of that portion of lots 4 and 5 in the town of Danville on which is constructed the spur-track from the main line of the railroad company to the place of business of the plaintiff lumber company. The fact that title to these lots was held by Johnston in 1920, when the track was constructed, and was acquired by the defendant Waters by deed from Johnston in 1928 is proved without dispute. These facts, in the absence of other evidence, would establish the unquestioned right of possession and use in Waters. As against these facts, the evidence shows that Johnston gave his consent, without limitation as to time and without reservation of any kind, to building this railroad-track, which entailed expense. This construction was made by Danville Lumber Company and the railroad company on terms between themselves set forth in an agreement executed by them on December 23, 1920. While the lumber company reimbursed the railroad company for the money spent in building this particular track, the railroad incurred other expenses by reason thereof, in rearranging other spur-tracks owned and operated by the railroad in the town of Danville. By virtue of the agreement between the lumber company and the railroad company, both had an interest in the construction and operation of the spur-track, and it was a joint enterprise of both; and in view of this fact it makes no difference whether only one or both bore the necessary expenses thereby incurred. These facts show a parol license from the owner of the land, and an expenditure of money by the licensee in execution of the license. While such license was revocable at will before its execution and before expense was incurred by the licensee, yet the evidence shows that it was not so revoked, and that no attempt at revocation was made before the expenditures were made. Under this state of facts, the Code, § 85-1404, is applicable and controlling in fixing the rights of the parties to the use of the premises. The parol license has become an easement running with the land. This question was dealt with inSheffield v. Collier, 3 Ga. 82, where B agreed that A might erect a mill on A's half of a tract of land, and cut as much timber off of B's adjoining land, and overflow as much of B's land, as might be necessary for that purpose. Afterwards B sold to C, who expressly agreed with A to abide by these stipulations which B exacted of him before he would sell. After the dam was partly constructed and timbers collected for building the mill, C sold to D, who notified A to discontinue the work, and upon A's refusal D brought his action of trespass for the overflow of the land. It was held that "under the circumstances the action could not be maintained, and that the original parol agreement could not be revoked after it had been executed at the defendant's expense." The facts there involved the same principles that are involved in the present case. Johnston agreed with the lumber company and the railroad company that they could construct the railroad-track over the land here involved. The track was constructed by them in accordance with this agreement. Thereafter Waters bought the land from Johnston, and gave notice to discontinue the operation of the track. The ruling in Sheffield v. Collier, supra, is applicable to and controlling on the issue in this case. It was adhered to in Mayor c. of Macon v. Franklin, 12 Ga. 239;Baker v. McGuire, 53 Ga. 245; Southwestern Railroad v.Mitchell, 69 Ga. 114; Ainslie v. Eason, 107 Ga. 747 (33 S.E. 711); Hiers v. Mill Haven Co., 113 Ga. 1002 (39 S.E. 444); Monroe v. Estes, 139 Ga. 729 (78 S.E. 130);Woodruff v. Bowers, 165 Ga. 408 (140 S.E. 844); Miller v. Slater, 182 Ga. 552, 558 (186 S.E. 413); Dickey v.Yarbrough, 186 Ga. 120 (197 S.E. 234). As to notice of subsequent owners, see Rome Gas-Light Co. v. Meyerhardt,61 Ga. 287; Hogan v. Cowart, 182 Ga. 145 (3) (184 S.E. 884).

While it was asserted by the plaintiff in error that the railroad was built with the consent of his predecessor in title, and that this consent was limited by the proviso that it should stand until notice was given of its revocation, yet there was no evidence on the trial to sustain this averment, and all the evidence produced disproved it and showed that the agreement was unlimited and without reservation. The uncontradicted evidence also showed that by proper written assignments and conveyances the plaintiff succeeded to the rights and interests of Danville Lumber Company in the easement. The answer as well as the evidence showed an intention on the part of the defendant to interfere with the use and enjoyment of the spur-track over his land, unless restrained.

Neither the pleadings nor the evidence involved questions of written title or of title by prescription. Such titles are expressly disclaimed by the railroad company. Consequently the Code, §§ 85-402, 85-409, and the cases of LaRoche v.Falligant, 130 Ga. 596 (61 S.E. 465), City of Atlanta v.Georgia Railroad Banking Co., 148 Ga. 635 (98 S.E. 83),First Christian Church v. Realty Investment Co., 180 Ga. 35 (178 S.E. 303), and Frazier v. Lee, 180 Ga. 385 (178 S.E. 722), all dealing with the question of title by prescription, cited by the plaintiff in error in his brief, have no application to the issues in this case. The evidence demanded the verdict as directed, and the judgment overruling the motion for a new trial was not erroneous for any reason assigned.

Judgment affirmed. All the Justices concur.