Macon & Western Rail Road v. McConnell

27 Ga. 481

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin J.

delivering the opinion.

We find no fault with the charge of the Court, upon the-question of negligence. We think that some modification of the opinion of the Court, is proper as to the relative rights of the road, and the contiguous proprietors of property. The charge, as given, was, “ that the company had to-keep and use wood at their stations, yet they had no right,, unnecessarily, to extend their wood-pile far enough to endanger the plaintiff’s property, when the plaintiff had made his improvements before the wood was hauled and thrown near his premises.”

The error in this charge is two-fold. It assumes, that there was proof to show, that the defendants had, “ unnecessarily-,” extended their wood-pile; and secondly, it maintains, that, notwithstanding the wood-yard had been used ever since the railroad was completed, and that fact was notorious to all, still, if the company had not occupied this portion of the ground for wood, before the plaintiff built, they were responsible for fires and other casualties.

We hold, that all who build, knowing that this was a wood-yard, and of course, the right of the defendant to use the whole, or any part of it deemed necessary, must build in reference to this right, and consequently, erect their improvements further off. (One of the members of this Court goes further, and maintains that whether this ground had been appropriated as a wood-yard or not, yet being the property of the defendant, and a wood-pile not being a nuisance, the defendant had the right to pile up wood upon the whole, or any part of the ground, even to the boundary line which separated between the company and the plaintiff.)

Judgment reversed.