The opinion of the Court was delivered by
Mr. Acting Justice Ramage.
This case was commenced May 16, 1922, to enjoin and remove a fence encroachment on the right of way of plaintiff, which was placed on the said right of way shortly before the commencement of the action in 1919: The case came on for trial before his Honor, Judge Henry, who directed a verdict in favor of the plaintiff, and this appeal is
from the said directed verdict and rulings of his Honor.
Plaintiff alleged that it was the owner of a right of way of 100 feet on each side of the center of its line railway through Colleton County and that the defendant had taken possession of about 5.35 acres of the right of way of plaintiff by fencing the said land in, and that, if defendant be allowed to keep the said under fence under a claim of hostile possession, plaintiff will lose its easement in that strip of land by adverse possession. Plaintiff asked that defendant be enjoined from interfering with plaintiff in its occupation and use of the said right of way and for $500 damages. Defendant denies that plaintiff has a right of way of 100 feet and alleges that plaintiff only has a right of way of about 15 feet on each side of the center of the track. The pleadings and exceptions will be set out in the report of the case.
It was admitted that plaintiff had the title to the right of way at the point in question, but it was not admitted that the width was 100 feet on each side of the center of the track, and it was further admitted that Allen Searson had the title to the property on each side of the right of way, but the extent of Allen Searson’s possession was not admitted.
We shall first consider the tenth and eleventh exceptions, first, as to his Honor’s directing a verdict in favor of plaintiff; and secondly, his failure to direct a verdict for defendant.
The first question that arises is: What was the width of the right of way of plaintiff at the point in question? It was admitted that plaintiff is the owner of the right of way of the Charleston & Savannah Railroad Company under its charter found in 12 Statutes, at page 271. So much of the said charter as is relevant is as follows:
“That in the absence of any written contract between the said company and the owner or owners of land dirough which the said railroad may be constructed, in relation to
said land, it shall be presumed that the land upon which the railroad may be constructed, together with one hundred feet on each side of the center of said road, has been granted to the said company by the owner or owners thereof; and the said company shall have good right and title to the same (and shall hold and enjoy the same) unto them and their successors, so long as the same may be used only for the purposes of the said road and no longer.”
The defendant contends in his answer that—
“Said right of way should be only sufficiently wide for for the railroad bed for the railroad to be at that time constructed.”
Defendant contends that this stipulation was in writing, but, even after being in a position to get in secondary evidence to this effect, defendant never put in any such secondary evidence tending to prove this. Plaintiff made a clear and full showing that a thorough search had been made for any written agreement or copy or record of the same and that none could be found.
Viewed from the standpoint of common sense, it is unreasonable that any railroad company would build a line of road under such a stipulation, or that at the time the road was built, any larger landowner should attempt to exact such a stipulation from parties who were attempting to build a line of railway through his isolated plantation. A justifiable eagerness to see the road constructed would have prevented any person of ordinary foresight and sense from trying to impose such a stipulation in any contract for the right of way. Not only was there no proof of any such agreement, but it was unreasonable even to conjecture that any such agreement in writing or otherwise ever existed. The date of the charter of the Charleston & Savannah Railroad Company was in the year 1853 and the road was thereafter constructed. There was some testimony of “borrow” pits along the line of railroad, where earth was taken for the construction of the road. The charter
gave 100 feet on each, side from the center of the road, and, in default of any written agreement, it is presumed that the right of way at the point in question in this case extended to these limits.
In the year 1891, M. C. Kollock (misspelled Collock), the engineer for Charleston & Savannah Railroad Company, made for the railroad a complete survey and map of the right of way along its entire length and at the point in question. No encroachments whatever were shown. J. M. Patterson, a witness for the defendant, was present when this survey was made. In 1896, G. M. Gadsden (misspelled Gaston), then engineer for Charleston & Savannah Railroad' Company, under constructions, took the Kollock may and again located and staked out the right of way as shown by said map. He testifies that there were then no encroachments at the point in question. He had an iron stake or monument set 100 feet from the center of the road to mark the right of way and the 71-mile post nearest the point in question is still there. There was undisputed testimony to the effect that at various times the right of way was cleared to 100 feet, and in 1903 the timber was cut to 65 feet from the center of the road. A number of witnesses testified that the right of way was cleared off and that there were no encroachments there until 1919.
Witnesses Daniel Pickney, E. M. Winston, H. W. Hyett, B. P. Hooker, Harry Crosby, J. P. Thomas, J. H. Lymock, and John Brown testified that for a long period of time the right of way was cleared off as a right of way. In fact the running of trains, the keeping up the track, and the clearing and burning off the right of way, or a portion thereof, would be a sufficient notice that plaintiff was claiming the right of way, and was making such use' and adverse claim as the nature of the case would permit. Defendant admitted, by implication in his testimony, that prior to 1897 the right of way had been cleared to a distance of 100 feet, and that the right of way had been at times burned off “100
and 150 feet to the ditch.” The Kollock map showed that the railroad claimed the right of way for 100 feet on each side of the center of the track.
“A
verdict [should] be directed where the evidence is not sufficient to warrant a reasonable jury in basing a verdict upon it.”
Howell v. Atlantic Coast Line R. Co.,
99 S. C., 417; 83 S. E., 639.
The following cases hold that a verdict cannot be predicated on surmise or conjecture, and that, where the testimony is all one way, a verdict must be directed that way:
Furman University v. Waller,
124 S. C., 70; 117 S. E., 356; 33 A. L. R., 615.
Sparton Mills v. Davis,
126 S. C., 312; 119 S. E., 905.
Bushardt v. United Inv. Co.,
121 S. E., 324; 113 S. E., 637; 35 A. L. R., 637.
Harrison v. Phœnix Co.,
127 S. C., 205; 120 S. E., 848.
“A
right of way under charter cannot be acquired adversely to the company by prescription. The width of the strip of land necessary for railroad purposes is fixed under the authority of the state, and this fact creates a strong presumption that the whole of it should be preserved as necessary for the purposes for which it was set apart.”
Matthews v. Seaboard Air Line Ry.,
67 S. C., 499; 46 S. C., 335;. 65 L. R. A., 286.
“The construction and operation of one track upon its location is an assertion of its right to the entire width of its right of way. The presence of a track constantly in use is a defiant badge of ownership, and the only practical assertion of title that can be made.”
Id.
Jones on Easements.
“The construction and operation of the railroad were an assertion of right to the entire width of the right of way.”
Beck v. Northwestern R. Co.,
105 S. E., 319; 89 S. E., 1018.
“The public has an interest in the construction and operation of railroads as highways which are burdened with duties to the public. Therefore a railroad company cannot dispose of or so use its right of way as to impair or de
stroy its ability to serve the public.”
Blume v. Southern Ry.,
85 S. C., 440; 67 S. E., 546.
A railroad company has some of the elements of a
quasi
public corporation. “The right of way of a railroad, having been acquired for a public purpose, cannot be lost by a prescriptive use or adverse possession, unless by the erection of a permanent structure, accompanied by notice to the railroad company of an intention to claim adversely to its right.”
Atlanta and C. A. L. R. Co. v. Limestone,
109, S. C., 444;
96
S. E., 188.
“According to the decisions of this court, the owner of the fee in a railroad right of way has the right to use as much thereof as is not in the actual use and occupancy of the railroad company, provided the use be not inconsistent with the claim of right for railroad purposes. It follows from this that a right of way of a railroad, having been acquired for a public purpose, cannot ibe lost by prescriptive use or adverse possession, unless by erection of a permanent structure, accompanied by notice to the railroad of an intention to. claim adversely to its right.”
Id.
“In accord with the principle declared in Mrs. Epperson’s Case (85 S. C., 140; 67 S. E., 235), the jury were further told that merely inclosing a part of the right of way by a fence was not sufficient to put the company on notice of adverse possession, but that there must be in addition thereto, proof of notice to the company that the fence was an assertion of an adverse or hostile possession.”
Atlantic Coast Line R. Co. v. Dawes,
100 S. C., 258; 84 S. E., 830; Ann. Cas., 1917A, 1272.
In the case of
Atlantic Coast Line R. Co. v. Epperson,
85 S. C., 134; 67 S. E., 235, the court affirmed the following:
“ 'Now, then, one of the questions is: “What will amount to hostile ownership?” The mere fencing of it, or using it for pasture or cultivation, or the like, is not sufficient; it takes something more than that, because it might be that the railroad had no use at that time, at that particular time, for
that right of way thus used, and the presumption is that the owner of the fee is using it by permission, or, at least, if not by permission, the presumption is that he is using it with the recognition'of the right of the railroad to demand the surrender of it at any time it may be needed for railroad purposes, so that the mere fencing of it or occupancy of it is not itself enough.’ ”
“Adverse possession is an affirmative defense.”Suber v.
Chandler,
36 S. C., 344; 15 S. E., 426.
And to constitute adverse possession it must be open, notorious, exclusive, hostile, continuous, and unbroken for the whole period.
Hill v. Saunders,
6 Rich., 62;
Ouzts v. McKnight,
114 S. C., 303; 103 S. E., 561.
Clary v. Bonnett,
114 S. C., 459, 103 S. E., 779; 1 R. C. L., 700-716.
“Wheiie the testimony as to adverse possession is susceptible of but one inference, the question is one of law for the Court.”
McIntosh v. Kolb,
112 S. C., 2; 99 S. E., 356.
“Successive possessions for less than the statutory period cannot be tacked, unless by descent cast.”
King v. Smith,
Rice, 10;
Porter v. Kennedy,
1 McMul, 354;
Garrett v. Weinberg,
48 S. C., 28; 26 S. E., 3.
Occasional or temporary use or occupation is not sufficient.
Jackson v. Lewis,
Cheves, 259;
McCullough v. Wall, 4
Rich., 68; 53 Am., Dec., 715. “Single, isolated occurrences are valueless, unaccompanied with actual continued, exlusive possession bjr permanent structure, or fence with notice, such as the law requires, to constitute adverse possession of right of way.”
Atlantic & C. A. L. R. Co. v. Limestone,
109 S. C., 444; 96 S. E., 188.
Southern Ry. v. Gossett, 79
S. C., 372; 60 S. E., 956.
Atlantic Coast Line R. Co. v. Epperson,
85 S. C., 134; 67 S. E. 235.
Bailey v. Irby,
2
Nott & McC.,
343; 10 Am. Dec., 609.
Plaintiff acquired the property April 10, 1902, and defendant acquired his hand on January 8, 1903. So defendant found plaintiff in the possession ana use of the right of way, and, under the testimony, up to that time there was no adverse possession, in ,the way of a permanent structure and notice, to conform to the Limestone and Epperson Cases cited above. The mere fact that the land had been cultivated even up under the trestle in rice did not show any adverse use, as the cases show that the landlord or landowner may go ahead and use the land as he always did for the purpose not inconsistent with the use of the railroad, and the railroad will not be barred from afterward putting it to use for railroad purposes when the occasion and necessity arise. It‘appears that nothing happened, until 1919, ■of such a nature as would’ have a tendency to show adverse ^possession and notice under the law. At this action was brought before the 10-year period had elapsed, what was done in 1919 does not count in this case.
We shall take up the facts set out in appellant’s argument to show waiver and adverse possession.
(1)The cultivation of part of the right of way. That has already been disposed of under the Epperson Case.
(2) The care on the part of the railroad not to throw any timbers, etc., in the rice field. This proves nothing aside from the care of the railroad not to injure the landowner in the legitimate use of his land, and .acts of thoughtfulness like that ought not to be turned into facts damaging to the rights and interests of a party. If the land owner had the right to have crops there, the railroad owed him the duty not to injure him if it could be avoided. We see nothing in this, except setting a good example for all men to follow in dealing with a neighbor.
(3) Negotiations about filling in where the trestle was. If the railroad considered the rights and wishes of the man owned the land on both sides of the right of way, we see no element of adverse possession there. Per
haps the objections of the landowner were good and were adopted by the railroad. At any rate the mere fact that they changed their plan about filling in would show no element of adverse possession. Appellant overlooks the fact that most of the ground in which this dirt was to be placed was within the 30 feet which appellant admits is the right of way of the railroad; and, if this fact has any force in the case, it could only go to show that appellant had the
whole
roadbed by adverse possession, to which .he makes no claim.
(4) The fact that the railroad company did not get dirt to make the fill from the land of a farmer owner of the premises. This proves nothing, except that the railroad perhaps saw the justice of his objection, and, if not that, it saw that the land would be inju’red unnecessarily and it went out of its way to get dirt elsewhere. No matter what the motive of the railroad was, it does not show adverse possession under the rule of a “permanent structure and notice,” laid down in the “Limestone” and other cases. Even if the railroad desisted from getting the dirt there merely to avoid trouble, that makes no showing of adverse possession under the law of this state. It does not appear from the testimony that the dirt was being taken
solely
from the right of way, but merely from the land of Mr. Speights; and it is likely that the road might have- had to go outside of the right of way in order to get the soil, and this of itself would have been a good and sufficient reason for getting the soil elsewhere.
(5) The stakes, four in number. This fact of the stakes being there proves nothing. There is no evidence as to how they got there or for what purpose. But the testimony is that the railroad had them taken up. In the absence of proof as to who put them there, or for what purpose they were put there, it is idle to conjecture. We further see nothing in what was done by or said to the section foreman and hands along there at the point in question that would make a case of adverse possession for the jury, especially in view
of the fact that this was done while the railroad and premises were in the ownership and possession of the predecessors in title of the plaintiff and defendant under the cases above.cited.
We see no error in his honor’s directing a -verdict for the plaintiff, and in his failure to direct a verdict for the defendant, and the exceptions raising these questions are dismissed.
14, 15 We shall now take up the exception 1 relating to the introduction of the Kollock map. In the first place the map itself was more than 30 years old, and in the discretion of the court could be introduced as an ancient document. G. M. Gadsden testified of his own knowledge as to his own work- locating and staking out the right of way in 1896. He used the Kollock map and noted on the map the result of his own work. He testified as to his own notations from his own survey, which were placed by him upon this old map. It was shown to come from the proper source, and was a muniment of title.
Goings v. Mitchell,
110 S. C., 380; 96 S. E., 612.
Atlantic Coast Line R. Co. v. Dawes,
100 S. C., 258; 84 S. E., 830; Ann. Cas., 1917A, 1272.
Thompson v. Brannon,
14 S. C., 542; and other cases cited by plaintiff. This exception must be dismissed.
In regard to the point made by the second exception. The testimony was merely negative and was in the discretion of the presiding judge. The fact that no complaint was made; would at least be revelant as to the attitude of the parties, and showed their relationship to the matters in the question. There is no reversible error as to the second exception.
The third exception alleges error in the trial judge in not allowing the witnesses J. M. Patterson and A. Z. Searson to testify as to statements made to them by Mrs. H. E. Bellinger, a predecessor in title of defendant, concerning the existence of a written contract with the railroad company. The case of
Wilson v. Southern R.,
123 S.
C., 399; 115 S. E., 764, and many other cases that might be cited show that only declarations
against
interest may be introducéd, and a self-serving declaration like the one in question cannot be admitted. This exception is dismissed.
The fourth exception cannot be sustained: The testimony of Daniel Pinckney is to vague and indefinite to base anything on — he seemed to be drawing more of a conclusion or inference than to be testifying as to facts. He merely made a statement as to what some “hands” said said that was as definite as he ever got. Under the rule laid down in th “Dawes Case,” merely stating what “hands” said, without being more definite as to who the “hands” were, and putting the matter in such shape that tlie saremen might be contradicted, was not enough to come within the rule so fevidence ; and his honor, who has had much experience in his career as solicitor in the introduction of evidence, was quite right in excluding such testimony.
Atlantic Coast Line R. Co. v. Dawes,
100 S. C., 258; 84, S. E., 830, Ann. Cas., 1917A, 1272.
There is no merit in the fifth exception in not allowing testimony as to the stopping of trains in front of the Bellinger home. To attempt to prove a contract in writing by the mere stopping of trains is too indefinite to be introduced in evidence. And, too, the relevancy of testimony is in the discretion of the trial judge. It has not been shown that this discretion was abused in this instance. To prove the contents of.a lost document, after showing the preliminaries, some one who knows the contents must testify to them.
Howell v. House,
2 Mill Const., 80.
Reynolds v. Quattlebum,
2, Rich., 140; 10 R. C. L., 917, 918, and cases cited. We can see no logical connection between the testimony and the facts of this case, and there was no error in excluding the-same.
The sixth exception complains of error in not allowing statements of John Winston, the section foreman, as to the width of the right of way. There
was no proof that he had any authority to bind the company by any statements as to the width of the right of way. That was clearly out of the scope of his agency. The case of “Dawes,” 100 S. C., 258; 84 S. E., 830 Ann. Cas., 1917A, 1272, is directly in point here. There was not only no proof that John Winston had such authority, but the testimony was the other way. Mr.' Archer, as roadmaster, testified that he had no such authority. This exception has no merit. What is said here also applies to the eighth exception.
The seventh exception must be dismissed. The width of the right of way through an adjoining plantation could have no relevancy in this case. To allow such testimony would make a case interminably long, and these matters are in the discretion of the trial judge. It has not been made to appear that he did not wisely use his discretion, And too it appears that appellant’s counsel himself objected to just such testimony and was sustained by the court, when the witness Archer was on the stand. 2 R. C. L., 238, 239.
The ninth exception charges error in excluding a letter in the nature of an offer of compromise. There was clearly no error in this under the well-known rule on the subject.
Smith & Furbush Machine Co. v. Johnston,
102 S. C., 130; 86 S. E., 489.
Woodward v. Southern Ry.,
88 S. C., 453; 70 S. E., 1060.
Tenhet v. Atlantic Coast Cine
R., 82 S. C., 465; 64 S. E., 232 and cases cited.
It is therefore the judgment of this court that the exceptions be dismissed and the judgment of the circuit court be affirmed.
Messrs. Justices Watts, Cothran, BeEase, and Stabler concur.
Mr. Chiee Justice Gary did not participate.