Atlantic & Birmingham Railway Co. v. Mayor of Montezuma

49 S.E. 738, 122 Ga. 1, 1905 Ga. LEXIS 92

• Court: Supreme Court of Georgia
• Decided: January 30, 1905
• Status: Published

Opinion

Lamar, J.

There is a “marked difference between the lawful and unlawful use of railroad property.” Austin v. Augusta Terminal Ry. Co., 108 Ga. 690. Both the contract and the Civil Code, § 2167, par. 5, permitting the longitudinal use of the street, must be construed to authorize only lawful use, and not the creation or maintenance of a nuisance thereon. . Streets and highways are intended primarily for the purposes of travel and transportation. When a railroad company is authorized to lay its track thereon, there is a conclusive presumption that the usé thereunder must he for similar purposes. A private citizen would not be authorized, even in front of his own premises, to obstruct a street, or to use it as a place of storage, or for any purpose which would interfere with the rights of the balance of the public. The railroad company stands upon the same footing. While permitted to use the street or the highway for transportation, it must adjust itself to the rights of the public in the same way that the public must adjust itself to the rights of the company. The railroad company can not unreasonably obstruct the street, or interfere with travel. It can not use the street as a depot, or a place for loading or unloading cars. And it has been repeatedly held that a railroad company can not use the street as a yard, or for switching or drilling purposes.

The court did not err in refusing the injunction. W. & A. R. Co. v. Young, 81 Ga. 397 (3); Kavanagh v. Mobile R. Co., 78 Ga. 803; 27 A. & E. Enc. Law (2d ed.) 179 (12).

Judgment affirmed.

All the Justices concur.