A railroad company organized and incorporated as provided in this chapter shall be empowered:
(Ga. L. 1892, p. 37, § 9; Civil Code 1895, § 2167; Civil Code 1910, § 2585; Code 1933, § 94-301; Ga. L. 1982, p. 3, § 46; Ga. L. 1984, p. 22, § 46; Ga. L. 2008, p. 210, § 7/HB 1283.)
The 2008 amendment, effective July 1, 2008, in paragraph (3), added the two provisos and added the last sentence.
Cross references.- Authority of railroad companies to operate motor vehicles for hire upon public highways, § 46-7-67.
Editor's notes.- Ga. L. 2008, p. 210, § 1, not codified by the General Assembly, provides: "(a) The General Assembly finds that the railroads and their rights of way in Georgia:
"(1) Are essential to the continued viability of this state;
"(2) Are valuable resources which must be preserved and protected;
"(3) Are essential for the economic growth and development of this state;
"(4) Provide a necessary means of transporting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials;
"(5) Relieve congestion on the highways and keep dangerous products and materials off our highways;
"(6) Are vital for national defense and national security; and
"(7) Provide the most energy efficient means of transportation through this state, thus minimizing air pollution and fuel consumption.
"(b) The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago."
Law reviews.- For annual survey on commercial transportation: a two-year survey, see 71 Mercer L. Rev. 39 (2019).
JUDICIAL DECISIONSANALYSIS
Cited in Georgia G.R.R. v. Venable, 129 Ga. 341, 58 S.E. 864 (1907); Piedmont Cotton Mills v. Georgia Ry. & Elec. Co., 131 Ga. 129, 62 S.E. 52 (1908); Seaboard Air-Line Ry. v. Blackwell, 143 Ga. 237, 84 S.E. 472, 1917A Ann. Cas. 967 (1915); Harrold v. Central of Ga. Ry., 144 Ga. 199, 86 S.E. 552 (1915); Georgia G.R.R. v. Miller, 144 Ga. 665, 87 S.E. 897 (1916); Savannah River Terms. Co. v. Southern Ry., 148 Ga. 180, 96 S.E. 257 (1918); Townsend v. Georgia Power Co., 44 Ga. App. 132, 160 S.E. 712 (1931); Southern Ry. v. Leonard, 58 Ga. App. 574, 199 S.E. 433 (1938); Atlantic Coast Line R.R. v. Southern Ry., 214 Ga. 178, 104 S.E.2d 77 (1958); Pickett v. Georgia, F. & A.R.R., 98 Ga. App. 709, 106 S.E.2d 285 (1958); Ammons v. Central of Ga. Ry., 215 Ga. 758, 113 S.E.2d 438 (1960); Hightower v. Chattahoochee Indus. R.R., 218 Ga. 122, 126 S.E.2d 664 (1962); Georgia Pub. Serv. Comm'n v. Central of Ga. R.R., 179 Ga. App. 415, 346 S.E.2d 568 (1986).
Authority to Hold and Use Real Estate
Quantity of land necessary for construction of terminals not fixed.
- The exact quantity of land that may be necessary for the construction and maintenance of stations, terminal facilities, and the like cannot be definitely fixed, even by prescribing a maximum amount, as in case of the right of way; and therefore the General Assembly prescribed by paragraph (3) of former Civil Code 1895, § 2167 (see O.C.G.A. § 46-8-100) that the company may acquire as much "as may be necessary" for this purpose. Atlantic & B.R.R. v. Penny, 119 Ga. 479, 46 S.E. 665 (1904).
Acceptance by one railroad from another of land lease for terminal yard.
- Railroad chartered under general law can accept lease of land for use as terminal yard from another railroad which had power under its charter to make the lease. Georgia R.R. & Banking Co. v. Maddox, 116 Ga. 64, 42 S.E. 315 (1902).
Conveyance by fee-simple of land no longer used for railroad purposes.
- It is immaterial that land has ceased to be used for railroad purposes where deed under which one claims title conveys fee-simple estate, and not a mere easement for railroad purposes. Woods v. Flanders, 180 Ga. 835, 181 S.E. 83 (1935).
Construction of safety islands proper.
- Municipalities and street railroad companies operating within their limits have the power, without being guilty of maintaining a nuisance or committing thereby an act of negligence per se, to authorize the construction and maintenance of, and to construct and maintain under such municipal authority, what are termed "safety islands" or "safety zones" in streets at the side of a streetcar line, for the use and safety of the public from automobile and other traffic when entering and departing from streetcars. Butler v. City of Atlanta, 47 Ga. App. 341, 170 S.E. 539 (1933).
Meaning of right of way.
- Right of way is construed as amounting only to an easement appurtenant to the land, however extensive its duration and however exclusive and paramount may be the rights conveyed for the necessary purposes intended. Central of Ga. Ry. v. Lawley, 33 Ga. App. 375, 126 S.E. 273, cert. denied, 33 Ga. App. 828 (1925).
Lesser width may be taken.
- A railroad company is allowed to appropriate under paragraph (4) of former Civil Code 1895, § 2167 (see O.C.G.A. § 46-8-100) for a right of way a strip of land not exceeding in width 200 feet. Whether a less quantity shall be taken for this purpose is left to the discretion of the company. Atlantic & B.R.R. v. Penny, 119 Ga. 479, 46 S.E. 665 (1904).
Condemning power may be exercised against corporate property.
- The power of condemnation conferred by paragraphs (3) and (6) of former Civil Code 1895, § 2167 (see O.C.G.A. § 46-8-100) may be exercised by a railroad company to appropriate to its use not only the property of an individual, but also the property of a corporation. Atlanta & W.P.R.R. v. Atlanta, B. & A.R.R., 124 Ga. 125, 52 S.E. 320 (1905).
Condemning power may be exercised against another railroad.
- The property of another railroad company may be condemned if the property thus sought to be acquired is not actually used by the other company for railroad purposes, and will not be needed by that company for such purposes in the immediate future. Atlanta & W.P.R.R. v. Atlanta, B. & A.R.R., 124 Ga. 125, 52 S.E. 320 (1905).
Railroad lessee requires legislative authority to exercise eminent domain.
- Lessee of a railroad company cannot exercise power of eminent domain, conferred by the legislature on the lessor, without legislative authority for that purpose. Harrold v. Central of Ga. Ry., 144 Ga. 199, 86 S.E. 552 (1915).
No preemption found by federal law in railroad case.
- Grant of summary judgment to a railroad was reversed as to the property owner's claim for inverse condemnation for the property located to the east of the railroad tracks because it could not be said that the claim would unreasonably interfere with or otherwise burden rail transportation; thus, the trial court erred when the court found that this claim was preempted by the Interstate Commerce Commission Termination Act of 1996, 49 U.S.C. § 10501 et seq. Fox v. Norfolk S. Corp., 342 Ga. App. 38, 802 S.E.2d 319 (2017).
Injunction available against abuse of discretion.
- If the company abuses the discretion vested in it by paragraph (4) of former Civil Code 1895, § 2167 (see O.C.G.A. § 46-8-100) and that preceding, a court may grant an injunction. Atlantic & B.R.R. v. Penny, 119 Ga. 479, 46 S.E. 665 (1904).
Authority to Construct Road Along Streets and Waterways
Compensation must be paid.
- Although the General Assembly may empower a commercial railroad company to occupy the streets of a town or city with the consent of the municipal authorities, yet such permission is subject to the constitutional restraint that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. Athens Term. Co. v. Athens Foundry & Mach. Works, 129 Ga. 393, 58 S.E. 891 (1907).
Use of street limited.
- Where by virtue of paragraph (5) of former Civil Code 1895, § 2167 (see O.C.G.A. § 46-8-100), and a contract with the city, the plaintiff had a right to construct and maintain a railroad track through a street, this would not authorize the company to use the street for drilling, switching, or transferring cars. Atlantic & B. Ry. v. Mayor of Montezuma, 122 Ga. 1, 49 S.E. 738 (1905).
Injunction not available to abutting lot owner.
- Under paragraph (5) of former Civil Code 1895, § 2167 (see O.C.G.A. § 46-8-100), a lot owner cannot enjoin the construction of a railroad along a street on which the owner's lot abuts, with the consent of the city council, on the ground that the contemplated change of grade, also approved by the council, will result in incidental damages to the owner's lot which have not been ascertained or paid. Whittaker v. Atlanta, B. & Atl. R.R., 143 F. 583 (N.D. Ga. 1906).
Railroad must obtain consent of municipality for use of street.
- As a general rule, a railroad company must obtain the written consent of the municipal authorities before it can lay a track on any street of a city in this state. Tift v. Atlantic Coast Line R.R., 161 Ga. 432, 131 S.E. 46 (1925).
Municipality's power of consent to construction.
- Power to consent to construction of street railroad inhered in municipality under of former Civil Code 1910, § 2585 (see O.C.G.A. § 46-8-100). Harrold Bros. v. Mayor of Americus, 142 Ga. 686, 83 S.E. 534 (1914).
Authority to Cross or Join Other Railroads
Paragraph (6) of former Civil Code 1910, § 2585 (see O.C.G.A. § 46-8-100) was not repealed by of former Code 1933, § 93-308 (see O.C.G.A. § 46-8-21), setting forth the power of the Public Service Commission over railroads. Savannah River Terms. Co. v. Southern Ry., 148 Ga. 180, 96 S.E. 257 (1918).
Right to join tracks not absolute.
- The right of a railroad company to join its tracks with the tracks of another railroad company is not absolute in all circumstances and without qualification. Savannah River Terms. Co. v. Southern Ry., 148 Ga. 180, 96 S.E. 257 (1918).
Road may be extended into town.
- When the charter of a railroad company authorized the construction of the railroad "to" a given town, the company may construct its line of road "into" the town; and if in constructing its road into the town it was necessary to cross the line of another railroad in order to reach its terminal point, it may cross such other railroad under the provisions of former Civil Code 1895, § 2167 (see O.C.G.A. § 46-8-100). Waycross Air-Line R.R. v. Offerman & W.R.R., 109 Ga. 827, 35 S.E. 275 (1900).
Paragraph (6) may be incorporated by charter amendment.
- Where a charter was amended in certain specified particulars and also to adopt the provisions of the general railroad law of this state, "as far as applicable," and such application was granted, paragraph (6) of former Civil Code 1895, § 2167 (see O.C.G.A. § 46-8-100) became incorporated into its charter, although under the original charter such right of way could be acquired only by contract, lease, or purchase. Atlantic & B.R.R. v. Seaboard Air-Line Ry., 116 Ga. 412, 42 S.E. 761 (1902).
Amendment to charter allowing railroad to lease another road.
- Amendment to charter of railroad by adopting provisions of general law confers on such railroad power to lease another road. Georgia R.R. & Banking Co. v. Maddox, 116 Ga. 64, 42 S.E. 315 (1902).
Court may inquire into necessity of connection.
- Where a terminal company seeks, under the right of eminent domain, to make an additional connection with the main line track of the other railroad company at a point within the length of a city block from the present switch connection, and, in order to do so, finds it necessary to cross two spur tracks of the railroad company leading from its main line, a court will inquire whether a reasonable necessity exists for the additional connection, and whether the additional connection, if made, will materially interfere with the railroad company in the discharge of its public duties and in the free exercise of its franchises. Savannah River Terms. Co. v. Southern Ry., 148 Ga. 180, 96 S.E. 257 (1918).
Injunction available to restrain crossing.
- Where a railroad company is about to cross the track of another railroad company without having acquired the right to do so, it is proper to grant an injunction at the instance of the latter company; but it is error for the court to provide in its order that the defendant company may cross the track of the plaintiff upon condition that it put in a certain described system of switches. Atlantic & B.R.R. v. Seaboard Air-Line Ry., 116 Ga. 412, 42 S.E. 761 (1902).
RESEARCH REFERENCES
Am. Jur. 2d.
- 13 Am. Jur. 2d., Carriers, §§ 156, 404, 755 et seq., 815 et seq. 18 Am. Jur. 2d, Corporations, §§ 19, 20. 18A Am. Jur. 2d, Corporations, §§ 485, 487, 488, 490-492, 494-515, 518-520, 522-523, 525-539, 541-544, 546-549, 578-581, 583, 584, 586-627, 632-644. 18B Am. Jur. 2d, Corporations, §§ 1957-1960, 1962, 1963, 1968, 1969, 1971-1976, 1979, 1981-1983, 2097, 2113. 26 Am. Jur. 2d, Eminent Domain, §§ 24, 25, 90. 27 Am. Jur. 2d., Eminent Domain, § 927. 65 Am. Jur. 2d, Railroads, §§ 16 et seq., 39, 40 et seq., 68, 75, 82 et seq., 90, 91, 103 et seq., 166 et seq., 236, 241, 242.
C.J.S.- 13 C.J.S., Carriers, §§ 138, 140, 367, 368, 387, 492, 495. 19 C.J.S., Corporations, §§ 672-676, 678-680, 692. 29A C.J.S., Eminent Domain, §§ 24, 37, 38. 74 C.J.S., Railroads, §§ 851, 853, 896, 897 et seq., 971 et seq., 1040 et seq., 1078, 1207 et seq., 1269.
ALR.
- Constitutionality of statute requiring railroad to construct and maintain private crossing, 12 A.L.R. 227.
Use of city streets for interurban railway traffic as an additional servitude, 13 A.L.R. 809.
Right to give exclusive privilege of soliciting patronage at railroad stations or on trains, 15 A.L.R. 356.
Spur or switch track as fixture, 21 A.L.R. 1089.
Failure to fence as rendering railroad company liable for damage to or by livestock after leaving right of way, 24 A.L.R. 1057.
Right of railroad company to use right of way for housing or boarding employees or others, 59 A.L.R. 1287.
Right of owner of fee to complain of use of railroad right of way as a place for driving or keeping livestock, 61 A.L.R. 731.
Private railway as additional burden on highway, 61 A.L.R. 1046.
Right of railroad company to prevent operations for gas or oil or other mining operations on right of way, 61 A.L.R. 1068.
Constitutional power to compel railroad company to relocate or reconstruct highway crossing, or to pay or contribute to expense thereof, 62 A.L.R. 815.
Right of railroad company to use or grant use of land in right of way for other than railroad purpose, 94 A.L.R. 522; 149 A.L.R. 378.
Scope and content of term "right of way" as employed in statute relating to taxation, or exemption from taxation, of railroads or railroad property, 108 A.L.R. 242.
Elimination of railroad grade crossing as local improvement for which property specially benefited may be assessed, 111 A.L.R. 1222.
Right in respect of private crossing in absence of statutory or contractual provision in that regard where land is taken by or deeded to railroad for right of way, 122 A.L.R. 1171.
Nature and extent of interest acquired by railroad in right of way by adverse possession or prescription, 127 A.L.R. 517.
Who entitled to land upon its abandonment for railroad purposes, where railroad's original interest or title was less than fee simple absolute, 136 A.L.R. 296.
Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679.
Condemner's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.
Width of way created by express grant, reservation, or exception not specifying width, 28 A.L.R.2d 253.
Spur track and the like as constituting a use for which railroad can validly exercise right of eminent domain, 35 A.L.R.2d 1326.
Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.
Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.
What constitutes abandonment of a railroad right of way, 95 A.L.R.2d 468.
Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land - state cases, 95 A.L.R.3d 752.
Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.
State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 A.L.R.4th 68.