Lucas v. Southern Railway Co.

61 S.E. 404, 130 Ga. 606, 1908 Ga. LEXIS 364

• Court: Supreme Court of Georgia
• Decided: May 13, 1908
• Status: Published

Opinion

Holden, J.

A petition alleged, that the plaintiff bought a certain tract of land, on the promise of the defendant (a railroad company) to put a sidetrack on it for his own use in carrying produce, sand, clay, and wood to a named city; that, after he had bought the land, the defendant complied with this promise by putting in a sidetrack; and that after ■allowing such track “to remain on his land for years,” the defendant removed the same without his consent and over his protest, thereby causing him damage by reason of being deprived of the use of said track; but the petition failed to allege that there was an agreement by the plaintiff fo make any shipment over the defendant’s road, or any other fact showing a consideration for the maintenance of the sidetrack, or that it was to be maintained perpetually or for any definite time, or that there was a failure to give notice of such removal a reasonable time prior thereto and that such failure caused special damage to the plaintiff. Held, that the petition was properly dismissed on general demurrer. Morrow v. Southern Express Co., 101 Ga. 810 (28 S. E. 998) ; Swan Oil Co. v. Linder, 123 Ga. 550 (51 S. E. 622) ; Durden v. Southern Railway Co., 2 Ga. App. 66 (58 S. E. 299).

Argued January 13, Decided May 13, 1908.

Action for damages. Before Judge Felton. Bibb superior court. February 1, 1907.

M. G. Bayne, for plaintiff. N. E. <& W. A. Harris, for defendant.

Judgment affirmed.

All the Justices concur.