APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
MR. JUSTICE McREYNOLDS delivered the opinion of the court.
Within the limits of Rome, Georgia, since 1881, three public bridges have crossed the Etowah and Oostanaula Rivers. Appellant is successor to the Rome Street Railroad Company incorporated in 1884 by special act and empowered to construct and operate railroads in that city, also in certain neighboring towns, and, with consent of the Floyd County Board of Commissioners of Roads and
Revenues, for five miles along public roads. Ga. Laws, 1884-5, p. 191, Id. p. 235. Authority was given to use horses, electricity, underground cables driven by steam, "or any other appliance that may hereafter be invented or used as motive power." The company began to run horse drawn cars over the city streets and across Howard Street or Second Avenue Bridge as early as 1885; and this mode of operation continued until 1892 or 1893.
The Howard Street Bridge having been destroyed in April, 1886, the county erected a new one upon the same site; thereafter it refused to permit the car company to lay tracks or operate over this without payment therefor and brought suit to enjoin any attempt so to do. In County of Floyd v. Rome Street Railroad Co., 77 Georgia, 614, 617 (October Term, 1886), the state Supreme Court held: "The only question made by the record, therefore, is, whether the legislature has authorized the street railroad company to appropriate this bridge to its use in the manner claimed by it, without the county's consent, and without making it compensation. . . . The bridge forms a continuation of the streets of the city across the river and is a part of the same. . . . The legislature, unless restricted by the State constitution, may, even without the consent of a municipality, and without allowing it compensation, authorize railroads to be laid in its highways. . . . But even had the consent of the county of Floyd been required to this use of the bridge by the street railroad company, that assent was given, and when the condition on which it was accorded was accepted and acted upon by the company, it became a binding contract until the license was revoked by the only authority having power to revoke it. . . . The precise point insisted upon by counsel for the county is, that where any part of a public street or highway is washed out or otherwise destroyed by any means, and the damage is repaired by a new structure upon the portion thus destroyed
or rendered unfit for use, this gives the county a right to exact additional compensation from a railroad company which, previously to the injury, used the street or public highway with the assent of the municipality, where the railroad company proposes to make the same use of the street or highway after it has been repaired. We certainly know of no case which has carried the right of compensation for its use to this extent, and think that its recognition and enforcement by the courts would work great injury to the prosperity of the community."
An amendment to its charter, September 21, 1887 (Ga. Laws, 1887, p. 148), empowered the company to use dummy steam engines on the bridge subject to such regulations as the Board of Commissioners might prescribe from time to time. Extensions were also specially authorized with consent of the Board as to public roads and town authorities as to streets. Another amendment, November 12, 1889 (Ga. Laws, 1889, p. 696), prohibited the use of dummy engines or steam power on the bridges without unanimous consent of all the Commissioners declared by public resolution in an official meeting, and it provided, "that the Board of Commissioners of Roads and Revenues of Floyd county shall not have the right to grant any vested or contract rights to said Rome Street Railroad Company, or any other persons on or over said bridges, but may, in their discretion, grant temporary uses and privileges to said railroad company over said bridges, subject at all times to be revoked by said commissioners."
February 25, 1892, Floyd County, through its Board of Commissioners, and the Rome Street Railroad Company by formal writing agreed that, "Said party of the first part grants to the said party of the second part the right to lay and maintain a single track on one side of the County Bridges, at Rome, to-wit, . . . with the right to place electric wires and appliances and to run
electric cars across said bridges upon the consideration and conditions herein named" -- among them payment of $100.00 annually for use of each bridge, and commencing to build electric lines within ninety days. Later, in 1892 or 1893, the car lines were equipped electrically and extended over and beyond all of the bridges, and since that time have been continuously operated. February 3, 1896, it was stipulated by the county and the City Electric Railway Company, a successor to the Rome Street Railroad Company and appellant's predecessor, "that said party of the first part grants to the said party of the second part the right to use its electric wires and appliances and to run electric cars across ...