The easement granted to the predecessor in title of the defendant does not, by its terms, restrict the use of the right-of-way for main-line purposes only, and the trial court properly denied the interlocutory injunction.

ARGUED JANUARY 15, 1957 — DECIDED FEBRUARY 12, 1957.

A. H. Tompkins filed an equitable petition against Atlantic Coast Line Railroad Company. In so far as material, it was alleged: The plaintiff is the owner of a described tract of land. One of the plaintiff's predecessors in title gave to a predecessor in title of the defendant a conveyance in writing. (This conveyance is set out in full in Tompkins v. Atlantic Coast Line Railroad Co., 89 Ga. App. 171, 79 S.E.2d 41.) The defendant is using the property conveyed for the operation of a railroad under the easement granted, which specifically limits and restricts the use of the property to the running of their track through the property, and for no other purpose. Notwithstanding the limitation, the defendant is asserting full ownership by erecting signs, by operating sidetracks, and by delivering and receiving freight on the right-of-way and using it as a means of ingress and egress of trucks for the delivery and receipt of freight. The defendant is seeking to take an additional easement over the property conveyed to it without compensating the plaintiff therefor, and a court of equity should restrain such use until the defendant complies with the requirement of the Constitution as to compensation.

The prayers were for process, that the defendant be temporarily and permanently enjoined from using the property conveyed to it for any purpose except its railroad track, and for other relief.

On the hearing the plaintiff testified that the defendant has erected signs on the right-of-way, stating that it is the property of the Atlantic Coast Line Railroad Company, and the defendant has placed a sidetrack on the right-of-way and is using it to discharge and receive freight, and for purposes other than to run its main line over the property. On cross-examination he testified: At the time the spur track was constructed there was no agreement between the plaintiff and the defendant with reference thereto. The plaintiff did not tell the defendant that the track must be removed at the expiration of a lease the plaintiff had made with a named company. He acquiesced in the construction of the track until the time of the filing of the present action.

At the conclusion of the testimony, the trial judge denied an interlocutory injunction, and the exception is to that judgment.

HEAD, Justice.

Generally, except in so far as a railroad company may be limited by its grant, its charter, or by statute, the right-of-way acquired by it may be used for any lawful purpose convenient or necessary to the operation of the railroad. 74 C. J. S. 500, § 99; 44 Am. Jur. 338, § 126. There is no statute in Georgia prohibiting a railroad company from building a sidetrack on its right-of-way. The charter powers of the defendant authorize the construction of a sidetrack, and the use of the right-of-way of the defendant for the purposes described in the petition is not limited by its easement.

In Tompkins v. Atlantic Coast Line R. Co., 89 Ga. App. 171, 176 ( 79 S.E.2d 41), the Court of Appeals held that the easement here involved is "an easement known as a railroad right-of-way." Such an easement can not be construed as limiting or restricting the use of the property for main-line purposes only. In Tift v. Atlantic Coast Line R. Co., 161 Ga. 432, 440 ( 131 S.E. 46), it was said that a railroad company operating a railroad in this State, is authorized and empowered, among other things, "to build and maintain such additional depots, tracks, and terminal facilities as may be necessary" for the business of the company.

In Louisville Nashville R. Co. v. Maxey, 139 Ga. 541, 543 ( 77 S.E. 801), it was said that a railroad company has the right to erect on its right-of-way such structures as will facilitate the business of the company and aid it in the receipt and delivery of freight. Counsel for the plaintiff insists that the ruling in that case was based on charter powers. The charter powers of the defendant in the present case (as successor in title) authorize any lawful act "properly incident and connected with" the operation of a railroad. Ga. L. 1835, p. 187. The case of Louisville Nashville R. Co. v. Maxey, supra, can not, therefore, be distinguished on its facts from the present case, and is controlling on the right of the defendant to use its right-of-way for the maintenance of a sidetrack for the receipt and delivery of freight. In this connection see also: Gaston v. Gainesville c. Ry. Co., 120 Ga. 516, 519 (4) ( 48 S.E. 188); Tift v. Atlantic Coast Line R. Co., supra.

In Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U.S. 540 ( 25 Sup. Ct. 133, 49 L. ed. 312) it was said that a railroad right-of-way is more than the mere right of passage; that it is more than an easement; that it is, in substance, an interest in land "special and exclusive in its nature." The erection of signs by the defendant, indicating that occupancy by it of its right-of-way is exclusive in character, affords no basis for complaint by the plaintiff.

The trial judge properly denied the interlocutory injunction.

Judgment affirmed. All the Justices concur.