proper construction, or by subsequent improper operation.

6. Though the evidence in this case, both as to construction and operation, was conflicting, the granting generally of the injunction was erroneous; for properly interpreting the language used in the opinion filed by the trial judge, in the light of the strong and decided preponderance of testimony showing that the construction of the yard upon a grade was proper, it is manifest that he did not graut the injunction solely because the yard was not laid out upon a level. This being so, and the effect of the injunction being to entirely prevent even the proper carrying on of a lawful business, instead of pointing out and restraining particular acts which, because unnecessary or unlawful, were nuisances, the judgment excepted to cannot be upheld; and moreover, save as to operations on the Sabbath, there was no evidence sufficiently clear and distinct to enable the court to designate any such acts as those just indicated, and specifically enjoin the commission of the same.

(Syllabus by the Court.)

Error from superior court, Fulton county; Geo. F. Gober, Judge.

Action by J. E. Maddox and others against the Georgia Railroad & Banking Company and others. Judgment for plaintiffs, and

defendants bring error. Reversed.

Jos. B. & Bryan Cumings, Sanders McDaniel, Dorsey, Brewster & Howell, and King & Spalding, for plaintiffs in error. H. E. W. Palmer, G. L. Bell, and B. H. Hill, for defendants in error.

FISH, J. The record shows that 24 residents and owners of dwelling houses at Inman Park, in the eastern portion of the city of Atlanta, and the trustees of 2 churches located there, filed a petition, with various amendments thereto, for an injunction against the Georgia Railroad & Banking Company, the Louisville & Nashville Railroad Company, and the Atlanta & West Point Railroad Company, to restrain the operation of a terminal yard, located on the right of way of the first-named company, adjoining Inman Park. The grounds upon which the injunction was sought were that such yard and the manner in which it was conducted was a nuisance, and that the damage resulting therefrom to the petitioners was special and irreparable. Inman Park was laid out in 1887 and 1888 as a residential, church, and school site, upon which valuable residences and churches were soon afterwards erected, and the park can be used for no other purposes. This park is bounded on its entire southern frontage by the right of way, 200 feet wide, of the Georgia Railroad & Banking Company. This company was incorporated, in 1833, as the Georgia Railroad, and its name changed to the Georgia Railroad & Banking Company by an amendment to its charter in 1835. Its railroad franchises, roads, rolling stock, etc., were leased to William M. Wadley and his assigns in 1881, and the Louisville & Nashville Railroad Company became the lessee through an assignment of the Wadley lease.

On October 17, 1899, the Atlanta Belt Line Company was incorporated, under the general railroad law of this state, to construct a steam railroad from Oakland City, on the Atlanta & West Point Railroad, to a point on the Georgia Railroad at or near the eastern corporate boundary of the city of Atlanta. The road was so built. Its western terminus was about two miles west of the eastern terminus of the Atlanta & West Point Railroad, and its eastern terminus was about one mile and three-quarters east of the western terminus of the Georgia Railroad. On November 30, 1900, the Louisville & Nashville Railroad Company leased to the Atlanta Belt Line Company a part of the right of way of the Georgia Railroad & Banking Company, at the junction of the two roads, for terminal facilities; and it is upon this leased land that the terminal yard in question is now located. On September 12, 1900, the Atlanta & West Point Railroad Company, which was incorporated by the legislature before the enactment of the general railroad law of this state, had its charter amended so as to include three parts of the provisions of the general railroad law, to wit: First. The sixth paragraph of section 2167 of the Civil Code, which reads as follows: "To cross, intersect, or join or unite its railroads with any railroad heretofore or hereafter to be constructed, at any point in its route, or upon the ground of any other railroad company, with the necessary turnouts, sidings and switches, and any other conveniences necessary in the construction of said road, and may run over any part of any railroad's right of way necessary or proper to reach its freight-depot, in any city, town or village through or near which said railroad may run." Second. The 2173d section of the Civil Code, the power given by this section being: "To lease or purchase the property of any other such company and hold, use, and occupy the same in such manner as they may deem most beneficial to their interest." Third. The 2179th section, by which plaintiffs in error claim the Atlanta & West Point Railroad Company was empowered to purchase or lease the property and franchises of any other railroad company whose railroad shall connect with, or form a continuous line or system with, the railroad of such company, upon such terms as may be agreed upon. On November 30, 1900, the Atlanta & West Point Railroad Company leased the Atlanta Belt Line, with all its rights, property, and franchises, including the lease of that part of the right of way of the Georgia Railroad & Banking Company upon which the terminal yard in question is located. The Atlanta & West Point Railroad Company began its transportation business over the Atlanta Belt Line, and its use of the terminal yard, on or about January 1, 1901. Under a traffic contract between the Louisville & Nashville Railroad Company and the Atlanta & West Point Railroad Company, the

latter was granted the joint use of the Georgia Railroad & Banking Company's terminals in and near Atlanta. and of its offices, station buildings, freight depot, coal chutes, water tanks, platforms, and yards, and the Atlanta & West Point Railroad Company granted to the Louisville & Nashville Railroad Company the equal use, in common, of its warehouses and grounds near Decatur and Butler streets, its freight warehouse near Loyd street, and its tracks and terminal yard, on the right of way of the Georgia Railroad & Banking Company, at and near Inman Park.

The petition for injunction, and the amendments thereto, aver that the original lease of the Georgia Railroad & Banking Company to William M. Wadley was void because unauthorized by that company's charter; that, for the same reason, the lease by the Louisville & Nashville Railroad Company of the part of the right of way of the Georgia Railroad & Banking Company to the Atlanta Belt Line for terminal facilities was void; that there was no physical connection between the Atlanta & West Point Railroad and the Georgia Railroad, as the eastern terminus of the former road was at Nelson street bridge, in the western part of the city of Atlanta, and the western terminus of the Georgia Railroad was in the center of the city; and that, therefore, the terminal yard at Inman Park was located in a place not authorized by law, which made it a nuisance per se. The petitioners also contended that the yard could be located on the Atlanta Belt Line where there were no residences; that the yard as constructed is partly on a steep grade, which intensifies the noises from locomotives and moving trains, and increases the volumes of smoke and cinders that are cast into their houses; that work in this terminal yard, which consisted of dissecting trains and switching cars and making up and moving off freight trains by inefficient and overloaded engines, was carried on almost unremittingly every day and night, including Sundays; and that these annoyances, with the unnecessary blowing of whistles, ringing of bells, and screaming of trainmen produced irreparable injury to their property, and made comfort in the daytime and sleep at night almost an impossibility to themselves and the members of their families. The petitioners submitted affidavits tending to support the various averments and contentions made in their pleadings.

The defendants answered that the terminal yard was located in pursuance of statutory powers, was skillfully and properly constructed, and caused less noise and inconvenience, in switching cars and other work thereon, than if it had been entirely on a level grade, and was not negligently or injuriously operated in any respect. These averments were supported by affidavits and other documentary evidence. The judge of the court below granted- a preliminary injunction on July 13, 1901,

restraining the use of the terminal yard altogether on and after October 1, 1901, and until that date enjoined its use, as such, on Sundays and between the hours of 9 p. m. and 6 a. m on other days. The defendants excepted to the grant of such injunction, and just before he certified the bill of exceptions presented by the defendants, on August 1, 1901, the judge modified such injunction so that the same, "without reserve, is suspended after the first of October [1901] until the remittitur is entered, and shall not take effect until five [5] days after entry of the remittitur from the supreme court, in the event such judgment is affirmed. The restraint from switching as granted in said order of July 13th, 1901, on Sundays and from 9 p. m. to 6 a. m. on other days, will continue until said injunction without reserve goes into effect."

1. The Atlanta Belt Line Company was incorporated under the general railroad law of this state. Its eastern terminus, according to its charter, was to be at a point on the Georgia Railroad at or near the eastern corporate boundary of the city of Atlanta. This gave it a large discretion in selecting the point for such terminus, and the company's exercise of such discretion "will not be revised unless it has clearly exceeded its limits or acted in bad faith" (3 Elliott, R. R. § 919, p. 1264; Fall River Iron Works Co. v. Old Colony & F. R. R. Co., 5 Allen, 221); and such revision, whatever might be the private remedies of individuals to prevent the location at the point selected, cannot be made, certainly, in a collateral proceeding, after the completion of the work (Railroad Co. v. Speer, 56 Pa. 325, 94 Am. Dec. 84). The Atlanta Belt Line Company possessed the statutory power to acquire by condemnation, purchase, or lease any land necessary for its terminal facilities at its eastern terminus. Civ. Code, § 2167, par. 3. And, when terminal yards are necessary, they must be provided by a railroad to facilitate its business of transportation. 4 Elliott, R. R. § 1479. It acquired the land needful for this purpose on a part of the right of way of the Georgia Railroad & Banking Company, by lease from the Louisville & Nashville Railroad Company, which was, and still is, the sublessee of the Georgia Railroad & Banking Company. To make this lease valid, the lessor must have had the power to make the lease, and the lessee the power to accept it, for if the lease was beyond the power of either, it was as invalid as if beyond the power of both. St. Louis, V. & T. H. R. Co. v. Terra Haute & I. R. Co., 145 U. S. 393, 402, 12 Sup. Ct. 953, 36 L. Ed. 748; 2 Elliott, R. R. §§ 430, 432. See, also, Central R. & Banking Co. v. Mayor, etc., of Macon, 43 Ga. 644. The Atlanta Belt Line Company, as shown above, had the statutory power to accept the lease. The question then arises, did the Louisville & Nashville Railroad Company possess the power to make the lease? The Georgia Railroad & Banking Company was leased to William M. Wadley

and his assigns on May 7, 1881, and an assignment of this lease was duly procured by the Louisville & Nashville Railroad Company, and the Georgia Railroad & Banking Company has ever since acquiesced in the subletting by Wadley. By such acquiescence, the Georgia Railroad & Banking Company occupies the same position as if it had originally leased directly to the Louisville & Nashville Railroad Company. Moreover, if the charter of the Georgia Railroad & Banking Company confers the power of leasing in the manner above referred to, then such power passed, as a part of the franchise, to the lessee, in the absence of any restricting clause or provision in the lease. See 19 Am. & Eng. Enc. Law (1st Ed.) 897. The sections of the charter of the Georgia Railroad & Banking Company applying to the power of leasing are section 12 (Acts 1833, p. 262) and section 14 (Acts 1833, p. 263). Section 12 is as follows: "That the said Georgia Railroad Company shall at all times have the exclusive right of transportation or conveyance of persons, merchandise or produce, over the railroad and railroads to be by them constructed, while they see fit to exercise the exclusive right; provided that the charge of transportation or conveyance shall not exceed fifty cents per hundred on heavy articles, and ten cents per cubic foot on articles of measurement, for every one hundred miles; and five cents per mile for every passenger: provided always, that the said company may, when they see fit, rent or farm out all or any part of their said exclusive right of transportation or conveyance of persons on the railroad or railroads, with the privilege to any individual or individuals, or other company, and for such term as may be agreed upon, subject to the rates above mentioned. And the said company in the exercise of their right of carriage or transportation of persons or property, or the persons so taking from the company the right of transportation or conveyance, shall, so far as they act on the same, be regarded

as

common carriers." (Italics ours.) And section 14 provides: "That whenever the company aforesaid shall see fit to farm out as aforesaid, to any person or persons, or body corporate, any part of their exclusive right of conveyance and transportation,” (Italics ours), they may provide for the character of the locomotives and cars that the lessee shall use. It is violative of all rules of interpretation to select one sentence or clause of a section in a charter, and shut one's eyes to the rest of the section, with the view of getting the sense of the whole section. And it is equally unwarranted to pass over altogether a succeeding section which contains words conclusively showing a direct reference to and connection with a prior section on the same subject-matter. "Special charters and general incorporation laws are, like other legislative acts, within the rule that, in

construing a statute, the whole act must be looked into, and all its parts harmonized if possible." 7 Am. & Eng. Enc. Law (2d Ed.) 713. It is true, as was said in the case of Railroad v. Smith, 70 Ga. 700, that the powers given to a corporation must appear in its charter in plain words or by necessary implication, and that all reasonable doubts shall be resolved, against the corporation, in favor of the public. This is but an iteration of an oft-repeated principle. "The true meaning of the doctrine is that grants to corporations are construed most favorably to the public when there exists a reasonable doubt as to the extent of the privileges conferred. But it does not follow from this that such a grant is to be construed so strictly as to wrest the meaning of words from their common and wellunderstood significance; but such a grant, like every other instrument, public or private, is to be construed according to the plain meaning of the words, where they are free from ambiguity and doubt." 4 Thomp. Corp. § 5345.

Now, let us construe sections 12 and 14 of the charter of the Georgia Railroad & Banking Company according to law, which requires it to be done without beginning and ending in the middle of either section, or arguing in a circle. In the first place, the company has at all times the exclusive right of transportation or conveyance of persons or property, "while they see fit to exercise the exclusive right." If they do not see fit to exercise it after possessing it, the necessary implication is that they would or could farm it out in whole or in part. This conclusion passes from the state of a necessary implication to that of an express grant to lease such right, upon a consideration of the subsequent words in the same section, and by connecting and construing this part of section 12 with section 14, as we will show further on. Next, there are two rates specified for the transportation of two classified species of property, and one single rate for the conveyance of persons. Then immediately follows the right of the company, when they see fit, to farm out to any person or persons, or other company, the whole or any part of their exclusive right of transportation or conveyance of persons on the railroad or railroads, with the privileges, for such term as may be agreed on. Almost an identical right as is given by these words alone is found in the charter of the Monroe Railroad Company, granted in 1833 (Acts 1833, p. 243), and the words were construed in the case of Central R. & Banking Co. v. Mayor, etc., of Macon, 43 Ga. 605, to confer upon the company the right to lease its road, in whole or in part, for the transportation of persons and property. Such leasing by the Georgia Railroad Company is to be "subject to the rates above mentioned." The word "rates" here clearly relates to the charges fixed for the transportation of property and the conveyance of persons, for there is only one rate as to passengers; and hence the power to lease in

whole or in part, the exclusive right of transportation of property, is thus further shown by express and apt words. Again, the company while exercising its "right of carriage or transportation of persons or property, or the person so taking [leasing] from the company the right [such right] of transportation or conveyance, shall be regarded as common carriers." These words show that the lessee of the company, as well as the company itself, while exercising the rights conferred, would be a common carrier, with the "right of carriage or transportation of persons or property." And in section 14 the power is expressly given to the Georgia Railroad Company, when it sees fit, to farm out as aforesaid (that is, as specified in section 12), to any person or persons, or other company, "any part of their exclusive right of conveyance and transportation." Such "exclusive right of conveyance and transportation" is expressly stated in section 12 to be the "exclusive right of transportation or conveyance of persons, merchandise and produce over the railroad or railroads to be by them constructed."

The act of December 18, 1835 (Acts 1835, p. 180), amending the charter of the Georgia Railroad Company, besides changing its name to the Georgia Railroad & Banking Company, empowered it "to have, purchase, receive, possess, enjoy and retain to them and their successors, lands, rents, tenements, hereditaments, goods, chattels and effects of whatsoever kind, nature or quality the same may be, sufficient for the construction of banking houses and the erection of the railroad only, and the same to sell, grant, demise, alien or dispose of." The word "demise," used in the enumeration of the powers of the company under this amendment, means, technically, to lease for a term of years. 5 Am. & Eng. Enc. Law (2d Ed.) 538. Thus, by express words which do not admit of any reasonable doubt, the charter of the Georgia Railroad & Banking Company clearly confers the power to lease its exclusive right of transportation of property or conveyance of persons, in whole or in part, to any person or persons, or other company, and for such term as may be agreed upon. See, also, the following cases bearing on the right of the Georgia Railroad & Banking Company to exercise such power of leasing: Arnold v. Banking Co., 50 Ga. 304; Banks v. Banking Co., 112 Ga. 655, 37 S. E. 992. It is contended by the defendants in error that "all right" of the Georgia Railroad & Banking Company "to lease anything" expired in 36 years, and, therefore, it had no power to make the lease to Wadley in 1881; and section 15 of the charter of the company is cited in support of this contention. It seems to us that the mere reading of this section shows that this contention is not sound. The section provides: "That the exclusive right to make, keep up and use the railroads and transportations authorized by this act, shall before and during the term of thirty-six years, to be computed from the time when the said

* *

road from Augusta to either of the points hereinbefore designated, shall be completed for transportation. And after said term of thirty-six years shall have elapsed, though the legislature may authorize the construction of other railroads, for the trade and intercourse contemplated herein; nevertheless, the Georgia Railroad Company shall remain incorporate, and vested with all the estate, powers and privileges as to their own works herein granted and secured, except the exclusive right to make, keep up and use railroads over and through such parts of the country, that shall so have expired by the foregoing limitation." Construing these two sentences together, it is evident that the intention of the general assembly was that, until the period of 36 years therein provided for had expired, the company chartered by this act should have "the exclusive right to make, keep up and use" railroads between certain points designated in the charter, and that the legislature should have power, during this period, to authorize any other company or person to construct and operate any other railroad, or railroads, between such points; but, after the expiration of this period, the legislature might "authorize the construction of other railroads for the trade and intercourse contemplated" by the act; and that even when the designated period of 36 years should have elapsed, and when other railroads had been constructed, under legislative authority, between these points, the Georgia Railroad Company should, nevertheless, remain incorporate, and be "vested with all the estate, powers and privileges as to their own works" granted by the charter, "except the exclusive right to make, keep up and use railroads over and through [the] parts of the country" in which the act granted such company the exclusive privilege of so doing for the term of 36 years from the time the road was completed from Augusta to any of the other points designated in the charter. That this is the meaning of this fifteenth section is very clear when we take into consideration the provision that, after the expiration of the limitation period, the company was to remain a corporation, and to be "vested with all the estate, powers and privileges as to their own works" granted and secured in the act. When the period of limitation should be completed, all the estate, powers, and privileges of the company, as to its own works, granted and secured by the act were to remain in full force and effect, but the right to prevent the construction and operation of other works of a like character within its hitherto exclusive territory was to terminate. If the company,

after the lapse of the 36 years, was "to be vested with all the estate, powers and privileges as to their own works herein granted and secured, except the exclusive right to make, keep up and use railroads over and through such parts of the country," we cannot conceive what right, power, or privilege granted by the charter, save the right to prevent the construction and operation of competing

railroads in the territory designated, the Georgia Railroad & Banking Company lost by the completion of the period of limitation. If, at the completion of such period, it was still to survive as a corporation, and to be vested with all the estate, powers, and privileges as to its own works except the exclusive privilege indicated, it was, when the 36 years had expired, still vested with the power to lease its road, franchises, etc., to any individual, or individuals, or other company.

It follows from the foregoing that the lease of the Georgia Railroad & Banking Company to William M. Wadley, in 1881, was legal; that he had the power to assign the right thus acquired; and the present lessee or assignee of that right, namely, the Louisville & Nashville Railroad Company, possessed the power to lease a part of the right of way of the Georgia Railroad & Banking Company to the Atlanta Belt Line Company for the latter's terminal facilities.

2. The Atlanta Belt Line Company also possessed the statutory power to lease its road, property, and franchises to another railroad company with whose road its own connected or formed a continuous line. Civ. Code, § 2179. It made such lease, on November 30, 1900, to the Atlanta & West Point Railroad Company, with whose line its own connected at Oakland City, in Fulton county, about two miles west of the eastern terminus of the Atlanta & West Point Railroad, and thus formed a continuous line from Oakland City eastward. Did the Atlanta & West Point Railroad Company have the statutory power to accept this lease? On September 11, 1900, its stockholders, to the end that it might be legally authorized to purchase or lease the Atlanta Belt Line road, duly and regularly adopted, by a large majority vote, the resolutions that its charter be amended by adopting the provisions. of the general act for incorporating railroads, as contained in sections 2167 (6), 2173, and 2179 of the Civil Code. Accordingly, on September 12, 1900, the charter was amended, under section 1840 of the Civil Code, so as to make the provisions of such sections a part of the same. On October 18, 1900, at an annual meeting of the stockholders of the company, a resolution was unanimously adopted which, after reciting that the charter of the company had been amended, granting it power to buy or lease the Atlanta Belt Line Railroad, authorized and empowered the board of directors of the Atlanta & West Point Railroad Company to buy or lease the Atlanta Belt Line Railroad, if they should deem such action advisable; the terms of the purchase or lease being left by the resolution to the wise discretion of the board. The lease, as we have seen, was made on November 30, 1900. It is true, as was ruled in Alexander v. Railroad Co., 108 Ga. 151, 33 S. E. 866, that these amendments to the charter of the Atlanta & West Point Railroad Company, being fundamental, radical, and vital, to be valid should have been based on the unanimous consent

of the stockholders. We think, however, that the resolution adopted by a unanimous vote of the stockholders on October 18, 1900, reciting that the amendments had been made, and empowering the board of directors to buy or lease the Atlanta Belt Line road, was such an acceptance and ratification of the amendments, by all the stockholders, as operated to legally make the amendments part of the charter of the company, just as if the unanimous consent of the stockholders had been obtained prior to securing the amendments. See 7 Am. & Eng. Enc. Law (2d Ed.) 682, and note 1, where it is said: "The general rule as to the acceptance of amendments to charters is that acts of user under an amendment to a corporate charter for which no authority can be found except in such amendment, and which amendment is supposed in good faith to be beneficial to the corporation, are evidence of an acceptance of such amendment by the corporation, and make it the law of the corporation, and binding upon all its members;" citing Railroad Co. v. Zimmer, 20 Ill. 654; Foster v. Bank, 16 Mass. 245, 8 Am. Dec. 135. See, also, Railroad Co. v. Cole, 29 Ohio St. 126, 23 Am. Rep. 729. In 2 Elliott, R. R. § 446, that author says: "In some of the states the statutes grant a right to lease to connecting lines. • * It is held that under such a statute it is not essential to the validity of a lease that the leased road shall be an extension from either terminus of the main line, but it may be merely a collateral branch forming a continuous road, by way of the junction, to either terminus of such main line, in as direct a route as the average railroad. The pivotal question under

such statutes is whether the line to which the lease is executed is a connecting line." Hancock v. Railroad Co., 145 U. S. 409, 12 Sup. Ct. 969, 36 L. Ed. 755. Our general railroad law authorizes one railroad company to lease its road, etc., to another company with whose road "it shall connect or form a continuous line." Civ. Code, § 2179. When enacting such law, the legislature manifestly had in view and meant a connecting line of railroad as then defined in our Code. The definition of a connecting line is found in sections 2212 and 2213 of the Civil Code, which are the same as sections 719 (q) and 719 (r) of the Code of 1882. These sections were construed in Logan v. Railroad, 74 Ga. 693, 694, as follows: "Section 719 (q) declares the connecting line to be any line 'at the terminus, or any intermediate point'; and section 719 (r) describes the connecting line by prescribing that 'where any railroad, in this state, joins another at any point along its line, or where two of such roads have the same terminus, either line having the same gauge may, at its own expense, Join its track by proper and safe switches.' So that it must be only an adjacent road capable of being joined by switch to the other, and this may be at the terminus or anywhere on the line where they meet or converge or connect, at village or depot or city." The At