1. "Without legislative authority, the city government of Columbus could not authorize the construction and use of a side-track for a steam railway over and upon the public streets of the' city. Kavanagh v. R. R. Co., 78 Ga. 271; Daly v. R. R. Co., 80 Ga. 793. The needful authority is sought to be derived from the act of 1857, and from a vote of the citizens taken under that act in 1887. The title of the act is “An Act to authorize the connection of the Muscogee Railroad with the Opelika Branch Railroad and the Mobile and Girard Railroad, at Columbus,.” Under this title the *97preamble and enacting clauses are as follows: “"Whereas, It would promote the interest and convenience of the people of Georgia and Alabarda, as well as the public generally, to connect the Muscogee Railroad with the Opelika Branch Railroad and Mobile and Girard Railroad, Be it enacted, That the president and directors of said roads shall have the power of connecting their said roads by extending them through the city commons and streets of Columbus, with such side-tracks, turnouts and sheds as may be necessary for the convenience of freights and passengers. Provided, they first obtain. the consent of the people of the city of Columbus, upon such terms as may be agreed on, and shall be satisfactory to them.” Acts 1857, p. 73. It appears from the record that the connection provided for in this act took place in 1859, under a vote of the citizens cast under the act in the previous year. Since that time the rights and franchises of the Opelika Branch Railroad have devolved upon and become vested in the Savannah and "Western Railroad Company, the plaintiff in error. Looking at the title of the act of 1857 above quoted, it is manifest that the whole purpose of that act was to provide puce for all for connecting the several railroads therein mentioned. In so far as side-tracks, turnouts and sheds were embraced in and constituted a part of the scheme of connection, the act comprehended and provided for them. But that scheme was executed in 1859. And it seems plain to us that side-tracks, etc. which did not become necessary for the convenience of freights or passengers until 20 or 30 years thereafter could not have been in legislative contemplation when the act was passed. The much safer and more rational construction is, that the powers conferred by the act were exhausted by their exercise and by the consequent connection of the railroads as the result of the popular vote taken in 1859. *98It cannot be that the work of connecting these railroads was not fully accomplished long ago. It cannot be regarded as a continuous and progressive work, not terminated in 1859 nor even within the long period since elapsed. The title of the act of 1857 is not broad enough to cover any side-tracks, turnouts, etc. which were not necessary as a part of the scheme of connection. To bring side-tracks, turnouts, etc. within the title of the act at all, they have to be treated as belonging to the scheme of connection. Without so treating them, the act as to them would be unconstitutional. The two votes taken under this act were separated by the period of almost a generation. To apply the act to the later of the two, would be to regard the work of making a connection as prolonged for the term of an ordinary lifetime. This court said in Kavanagh v. R. R. Co., supra: “It may be that, under this act of the legislative, a further consent of the people of Columbus might be given by them in a further vote to be taken, that such side-tracks might be laid down along said street.” This was a mere suggestion of a possibility, the case then in hand not requiring any adjud’catiou of the point. The present case brings the question directly under adjudication, and we have considered it on our responsibility as a court. Thus dealing with it, we think it should be answered unhesitatingly in the negative. An affirmative answer would requiré us to use the act as a mere color for authorizing a vote thirty years after the passage of the act and when a vote under it had already been taken within the next year after its passage. Our conclusion is, that the city council of Columbus had no power or authority to grant permission to the Savannah and Western Railroad Co. (plaintiff in error) to occupy the public streets with the side-track or turnout now in question.
2. In the absence of legal authority for placing and *99using this structure in the public streets, the same would be a publie nuisance. And under the evidence in the record, we think the judge did not abuse his discretion in granting a temporary injunction at the intance of Woodruff, the owner of real estate in the immediate vicinity. The injunction was granted upon terms, bond and security to answer for any resulting damages being required of Woodruff before the injunction would become effective. Whether he would sustain special damage or not from this threatened .public .nuisance, is a question for trial, under our practice, by a jury. Usually such a question may be dealt with on applications for temporary injunctions according to the sound discretion of. the judge. lie will not be controlled by this court, where no abuse of his discretion appears. Cohen, v. The Bank, 81 Ga. 723.
3. The motive of Woodruff' for purchasing the real estate which he séeks to protect, or the recency of his purchase, can have no influence on his legal rights as owner of the property. It is no answer by one who is about’ to erect a public nuisance, that the citizen complaining of special damage would not have been injured if he had abstained from making so late a purchase, or if his motive for purchasing had been more disinterested. We do not say that these matters should have no weight upon the mind of the judge in shaping his discretionary action upon the application for injunction, but only that they present no legal bar to the exercise of his discretion favorably to the applicant.
Judgment affirmed.