Martin v. Seaboard Air-Line Railway

Atkinson, J.

1. The land through which the right of way was granted was located in the town of Lawreneeville. The whole tract was not granted, but only a strip of land through the tract. The width of the strip was not specified in.feet, or other unit of measurement, but the fact that it was not does not require a construction of the deed that would authorize successive encroachments on the land of the grantor after the railroad company had *809 selected the location for its road-bed and cuts and fills necessary to the maintenance of the road-bed through such land. So to construe the deed would authorize the grantee to eventually take all of the grantor’s land, if the necessities of the railroad company should in future require it. In that event the grantee would get all, and not merely a strip through the land. While'the width of the right of way was not expressed in feet, or the like, it was described as “extending each side of and at right angles to the center of the track or road-bed,” and, “in case of high banks or deep cuts, such additional width as may be necessary.” The clear meaning of this is that the strip of land should be of sufficient width to locate the road-bed of the railroad company; and inasmuch as in some places, on account of the necessity for high banks or deep cuts, a greater width might be necessary than where such would not exist, the right of way so given need not be of uniform width, but, though irregular, should not be wider than actually necessary for the construction and maintenance of the railroad through the grantor’s land That such was the intention of the parties is made the more plainly to appear by the further language of the deed, viz.: “The land hereby conveyed is the ground actually occupied by the road-bed, either fill or cut, and which may be necessary for the operation of the business of the said road in running its trains through the lands of the undersigned.” The grant did not identify the land intended to be granted, but left it to the grantee to complete the identification by locating the road through the grantor’s land. This ‘is indicated by the language which refers to the road-bed intended to be located “as the same may be located and established by the party of the second part.” Subsequently, when the grantee located its roadbed, that completed the identification of the land granted, and fixed, the rights of the parties under the deed, thereby confining the grantee to the land so appropriated. Gaston v. Railway Company, 120 Ga. 516 ( 48 S. E. 188 ); Atlanta & West Point R. Co. v. A., B. & A. R. Co., 125 Ga. 529 (2), 540 ( 54 S. E. 736 ). The deed, therefore, was no authority for the successors in title of the grantee, many years after the location of the road-bed, to encroach upon the remaining part of the land from which the strip was taken, for the purpose of building the additional side-track which it was sought to enjoin.

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2. It was contended that the defendant had acquired prescriptive title by twenty years adverse possession of that portion of the land on which it was purposed to locate the additional side-track. The action was instituted in October, 1912. The evidence in favor of the railroad company does not disclose clearly the date on which it is contended that the possession commenced on which it relies for prescription, nor even the date of the construction of the railroad through the grantor’s land. It was somewhere between the date of the deed, April 23, 1891, and 1893. Even if the railroad company had extended its possession beyond the land actually occupied by the road-bed and cuts and fills since the road was constructed, it is not clear that the adverse possession would have commenced twenty years before the filing of the suit in 1912. But aside from this, the evidence is undisputed that for much of the time during the alleged prescriptive period the successors in title of the grantor were in actual possession, cultivating considerable portions of the land adjoining the road-bed, including the land which the railroad company was seeking to appropriate for the location of the sidetrack. Under these circumstances the evidence did not authorize the judge to hold that the railroad company had title by prescription.

3. The plaintiffs, who were seeking to enjoin the railroad company from taking their land without condemnation proceedings for the purpose of locating an additional side-track, showed sufficient evidence of title to support their action, while the defendant failed to show title either by grant or prescription. Accordingly, it was erroneous to refuse the injunction.

Judgment reversed.

All the Justices concur.