Cayce Land Company v. Guignard

134 S.E. 1, 135 S.C. 446, 1926 S.C. LEXIS 105

• Court: Supreme Court of South Carolina
• Decided: May 17, 1926
• Docket: 11988
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Cothran.

Cross-appeals from an order or decree of his Honor, Judge DeVore, dated August 31, 1925, entered after the hearing of exceptions to the report of the Special Referee, R. E. Carwile, Esq., and upon an application for a writ of assistance by the plaintiff. This is the third appeal in the case. The other appeals resulted in judgments of this Court, reported in 124 S. C., 443; 117 S. E., 644, and 131 S. C., 296; 127 S. E., 364.

The action was commenced at a time not stated in the record, but before December 6, 1921, the date of the Special Referee’s report; quoting the language of the “Case for Appeal”:

“In its complaint the plaintiff alleged that it and the defendant were tenants in common of the lands mentioned and described in the complaint, and demanded judgment against the defendant (1) for a partition of the lots of land; (2) for the value of the use and occupation thereof since the death of John Campbell Bryce, to be accounted for by said defendant; and (3) for the costs of the action.”

The defendant denied the right of the plaintiff to partition, upon grounds overruled in the former judgment of this Court, adverted to in the opinion reported in 124 S. C., at page 455 (117 S. E., 644), and set up the defense that he had purchased the property in good faith, believing that he was acquiring a good title thereto; had erected valuable improvements thereon; and .that, in the event that partition be ordered, that portion of the lots upon which improvements had been placed be assigned to him, or, in the event of sale, he be allowed compensation for them.

The case involves the rights of the parties in connection with three distinct portions of a large tract of land, which formerly belonged to one John Bryce, just across the Congaree river from the city of Columbia, in Lexington County, in and around what is now known as the town of Cayce, containing 500 acres : (1) A lot in the town of Cayce, containing one square acre, hereinafter referred to as the “acre lot” ; (2) a strip of land 3 J4 acres, constituting the right of way of the Southern Railway Company, 65 feet wide on each side of the center of the main line, and extending from the State Highway on the west to the Congaree river on the east, hereinafter referred to as the “right of way”; and (3) a small segment of land between the north line of the right of way as the “arc,” and the property line of the Moseley estate and of the defendant Guignard as the “chord,” about 900 feet long and about 30 feet wide at the widest point, containing four-tenths of an acre, herinafter referred to as the “segment.”

Both the facts and the proceedings in this case are complb cated to a degree, and it appears necessary that a detailed and doubtless tedious recital of them shall precede a discussion of the legal issues between the parties.

The 500 acres, as stated, formerly belonged to John Bryce. He died in 1855, leaving a will, which has been construed by this Court, in former proceedings, as creating in John Campbell Bryce, a son of Campbell R. Bryce, and a grandson of the testator, John Bryce, a fee defeasible, with a limitation over upon the death of John Campbell. Bryce, without issue (children), to his six sisters, as executory devisees. John Campbell Bryce, the tenant in fee defeasible, died March 15, 1915, never having married, and at his death the executory devises took effect in his six sisters. See 124 S. C., at page 451 (117 S. E., 644). At some time not appearing in the record, but evidently prior to 1876, John Campbell Bryce had mortgaged his interest in the land.

It is not clearly developed, but it appears that prior to 1876, some arrangement had been made between John Campbell Bryce and Elizabeth R. Cayce (who she was does not appear), by which the property was conveyed to Elizabeth •R. Cayce, in trust for John Campbell Bryce and the executory devisees upon the termination of his fee defeasible.

About the year 1876 the mortgage which had been given by John Campbell Bryce was foreclosed in the case of Hope v. Bryce et al. (we assume that Hope was the mortgagee or the assignee of the mortgage), and at the sale at that time R. G. W. Cayce and James Cayce, who were then the executors of the will of Elizabeth R. Cayce, became the purchasers of the property, and, as decided by the decree of his Honor, Judge Moore, in this case, dated March 16, 1922, they assumed and continued in possession as trustees under the terms of the trust deed from John Campbell Bryce to Elizabeth R. Cayce.

The defendant's (Guignard's) title to the “acre lot,” acquired October 2, 1899, comes by successive conveyances from R. W. G. Cayce and James Cayce, as explained in the opinion of Mr. Justice Marion, in 124 S. C., at page 453 (117 S. E., 644), and in the report of the Special Referee, dated May 19, 1925, and he became trustee for the executory devisees upon the termination of the fee defeasible in John Campbell Bryce at his death on March 15, 1915, as Elizabeth R. Cayce and R. G. W. and James Cayce had been. The defendant, Guignard, held possession of the “acre lot” from the date of his conveyance October 2, 1899, until the termination- of the fee defeasible on March 15, 1925 and continued thereafter to hold possession, and was in possession at the time of the commencement of this action.

In 1906 or 1907, as explained in the opinion of Mr. Justice Marion, in 124 S. C., at page 454 (117 S. E., 644), the plaintiff, Cayce Land Company, acquired the interest of five of the six executory devisees, daughters of Campbell R. Bryce and sisters of John Campbell Bryce, in the entire 500 acres. The interest of one of them, Margaret C. Simons, was not then acquired. So much for the condition of the title to the “acre lot.”

Next, as to the “right of way” : At some time before the termination of the fee - defeasible,- the predecessor of the Southern Railway Company acquired from the parties who were then holding under the title of John Campbell Bryce, as tenant of the fee defeasible, a right of way as described above over a part of the 500 acres.

On July 5, 1897, R. W. Cayce (we assume R. W. G. Cayce), who apparently had acquired the interest of James Cayce, conveyed to B. B. Cayce a stripi of land containing 3% acres more or less, extending from the State road to the Congaree river, “known as the right of way of the South ern Railway,” bounded on the north by lands of John Shuler, on the south by lands of J. N. Long, and on the east by lands of G. A. Guignard and Rocky Ferry.

B. B. Cayce contracted to sell this land to Guignard, but never executed a deed therefor. Guignard, however, went into possession of it, except, of course, the roadbed and, as he states, 10 feet on each side of the track, and built three small houses upon it. The railway company then brought an action against Guignard and the heirs of B. B. Cayce to establish its right of way. The action resulted in a decree requiring a conveyance by the defendants to the railway company of a strip 65 feet on each side of the track between the Congaree river and the State road. The railway company continued in undisturbed possession of its right of way so established until August 15, 1916, when the Cayce Land Company and the heirs of Margaret Simons, whose interest it had not acquired, brought an action against the Southern Railway Company to recover possession of the land covered by the deed executed in compliance with the decree in the case of Southern Railway Company against Guignard and the heirs of B. B. Cayce, evidently upon the theory that whatever rights the railway company had were derived from the fee defeasible estate in John Campbell Bryce, which had terminated in 1915, vesting the title in the executory devisees. This suit resulted in a judgment in favor of the plaintiffs for $2,558.58, compensation for the right of way, which was paid by the Southern Railway Company. The effect of this litigation was to establish the fee to the land covered by the right of way in the Cayce Land Company, which owned the interests of five out of six of the executory devisees, children of Campbell R. Bryce, and in the heirs of Margaret Simons, the sixth of the executory devisees; the easement of right of way in the railway company.

On June 10, 1909, Guignard entered into a contract with the receivers of the Seaboard Air Line Railway Company whereby under • certain conditions, a spur track was con structed by him leading from the Seaboard’s track (south of the Southern’s track), crossing the right of way of the Southern, across the strip of four-tenths of an acre, the “segment,” and proceeding on, over lands of Guignard, to his brickyard on the north side of the Southern. The spur track crossed the track of the Southern by an underpass, constructed by license of the Southern. The purpose of Guignard in constructing, maintaining, and operating this spur track and underpass was to obtain a way by which he could haul by rail clay from a clay pit on the south side of both railroad tracks to his brickyard on the north side, and also by which he could haul brick and other freight from his brickyard to the Seaboard’s station at Cayce. The cost to Guignard for such construction was $330. The present value of it was shown to be $6,610.

On September 21, 1909, Guignard entered into a contract with the Southern Railway Company, whereby, under certain conditions, a spur track was constructed by him leading from the track of the Southern, partly over its right of way, across the “segment,” and proceeding on, over lands of Guignard, to his brickyard on the north side of the Southern. It crossed the right of way at grade, and at the north line of the right of way, as shown on the Tomlinson plat, about 400 feet from the underpass where the other spur track crossed. It was constructed by Guignard at his own expense, under the license agreement with the Southern Railway Company, in order to have a connecting line with the Southern Railway Company, over whose lines he ships and receives large quantities of freight. So much for the condition of the title to the “right of way.”

Next, as to the strip of four-tenths of an acre lying between the north line of the Southern Railway Company’s right of way and the property line of the Moseley estate and of the defendant, Guignard, the “segment”:

It appears that R. W. G. Cayce claimed title, from the fee defeasible estate in John Campbell Bryce, to the fee in the land occupied by the right of way of the Southern Railway, and, as stated above, on July 5, 1897, he conveyed the fee in this tract, containing 3% acres, to B. B. Cayce. The latter contracted to sell it to Guignard, but no deed was ever executed. Guignard, supposing that the 3j4 acres extended north as far as the lines, of the Moseley estate and his own, went into possession of the entire tract, except, of course, the roadbed of the railway company. It developed that the railway company’s right of way extended 65 feet on the north, which left the strip under consideratiotn, containing four-tenths of an acre. The referee finds:

“It appears that, upon the filing of the decree in the case of Southern Railway Company and others against E. G. Cayce, G. A. Guignard et al., that said G. A. Guignard abandoned his claim to all of the tract of land which B. B. Cayce had contracted to convey to him, except the four-tenths acre lying on the north side of the right of way of the Southern Railway Company, and delineated on the Tomlin-son plat hereinbefore referred to. He, however, remained in possession of this four-tenths acre, and used and occupied the houses built thereon * * * The only part of the lands delineated on the Tomlinson plat which the defendant Guignard has had possession of since the death of John Campbell Bryce are those portions of the four-tenths of an acre lying north of the right of way of the Southern Railway Company, as shown by the Tomlinson plat, and he is liable for the rental value thereof under the order of Judge Moore.”

The case was referred to R. E. Carwile, Esq., as Special Referee, who filed a report dated December 6, 1921, in which he held that the plaintiff was entitled to partition. As to the “acre lot,” he held that improvements of the value of $1,250 had been placed upon the lot, and that the defend-' ant was entitled to that amount (in the event of a sale, it is assumed), and that, if the improvements did not cover more than one-sixth of the lot (that being as was then supposed, the interest of the defendant as a tenant-in-common), such portion be allotted to him. As to the “segment,” he recommended a sale of it, but that, as the description of it was very indefinite, a survey be made. As to the demand of the plaintiff for an accounting of the rents, he held:

“There is no proof that the land had a rental value, except that portion that was improved (the ‘acre lot,’ interpolated), which I have recommended be set apart to the said G. A. Guignard.”

The Special Referee’s report is not set forth in the record, and there are doubtless other findings than these, taken from excerpts set forth, which we assume are not considered material to the issues now involved.

The matter then came on to be heard by his Honor, Judge Moore, in February, 1922, upon exceptions to the report. On March 16, 1922, he filed a decree, in which he decided:

(1) That Guignard was not entitled to compensation for improvements found upon the “acre lot” at the time of the commencement of the action, for the reason stated by him that it did not appear by whom the improvements were put upon the property “nor does it appear how much those improvements add to the present value of the property.” In addition, the learned Judge remarked:

“It is clear, however, that the possession of the property was held by Mrs. Elizabeth Rea Cayce, under the terms of her trust agreement, until her death in 1876; that her executors then succeeded to the possession, and then while so in possession, themselves purchased the fee defeasible of John Campbell Bryce at the judicial sale in the case of Hope v. Bryce. They conveyed directly to Wilie Jones, who knew of the trust. Wilie Jones conveyed to W. J. Cayce; and he conveyed to Lula Cayce. W. J. Cayce was on the stand, and testified. He did not claim that either he or his wife Lula Cayce had made improvements on the property, but, whether they did so or not, thejr were only life tenants of the property, and trustees to protect the remaindermen against any adverse claim. They were, therefore, not in a position to assert a claim within themselves based upon improvements made to the property.. In the case of Trimmier v. Darden, 61 S. C., 220; 39 S. E., 373, the rule recognized and said to be firmly established (is) that a tenant for life who puts improvements on land, is not entitled to compensation from the remaindermen. The case is much stronger where the tenant for life is not only such tenant, but is a trustee to protect the rights of the remaindermen.”

(2) As to the “acre lot,” he ordered it sold for partition, and that the proceeds of sale, after paying costs and expenses, be paid to the plaintiff and to the defendant, in the proportion of five-sixths and one-sixth. He added:

“This decree proceeds upon the theory that the defendant, Guignard, has in some way acquired the one-sixth interest under the will of John Bryce which did not pass to T. Hugh Meighan by the several deeds referred to in the Master’s report. If he has not acquired such interest, and is not entitled thereto, he will be bound to indemnify the purchaser at such sale from any claim on account of the owner of such undivided one-sixth interest.”

(3) As to the “segment,” he held that Guignard was in possession of it as trustee, and was bound to make a full disclosure of the amount of land so possessed; that there was no evidence before the Court to establish where the line was which divided the strip from the other lands of Guignard. He therefore ordered Guignard to appear before the Special Referee, “and make a complete and perfect showing as to what lands are now or have been in his possession, which constituted a part of the original Bryce land lying north of the right of way of the Southern Railway Company, and that the said R. E. Carwile, Special Referee, be authorized and directed to have a survey made thereof, with a plat thereof, and that the plaintiff have leave to apply at the foot of this decree for further orders with reference to that part of the land.”

(4) That the defendant, Guignard, “acount for the rental value of the said lands occupied by him since the death of the tenant in fee defeasible, John Campbell Bryce, which occurred in the year 1915.”

From this decree the defendant appealed to this Court, which, in an opinion filed May 22, 1923 (124 S. C., 443; 117 S. E., 644), affirmed the decree of his Honor, Judge Moore in all respects.- Thereafter, in July, 1923, the “acre lot” was sold at public auction by the clerk of Court, and bid in by Cayce Land Company at $2,550. The company complied with its bid by paying the costs, and paying to the clerk of Court $412.62, one-sixth of the net proceeds of sale.

On October 18, 1923, the Special Referee had the strip adjoining the railroad right of way surveyed and platted, showing that the strip between the northern line of the railroad right of way and the lands of the Moseley estate and Guignard on the north contained four-tenths of an acre. After the sale and survey, it was discovered that the supposition that Guignard owned the remaining one-sixth interest in the property was a mistake; that Margaret Simons, a daughter of Campbell R. Bryce, had not been settled with, and that her children, twelve in number, had succeeded to her interest, she having died before the death of John Campbell Bryce, the tenant indefeasible.

The Cayce Land Company then purchased the interests of eleven of the twelve children of Margaret Simons, omitting to acquire the interest of Mary Tucker, the twelfth child of Margaret Simons, who had survived her mother, but who had since died intestate and childless, leaving her husband, W. H. Tucker, as one of her heirs at law.

Thinking that it had acquired the entirety of the outstanding one-sixth interest, and having already acquired the other five-sixths interests of the children of Campbell R. Bryce and that Guignard had no interest at all in the estate, the Cayce Land Company, availing itself, as conceived, of the clause in the decree of his Honor, Judge Moore, allowing the parties to apply at the foot of his decree for any order necessary to carry the same into effect, and specifically as to the strip of four-tenths of an acre, filed a petition in the main cause setting forth that it had purchased the entire outstanding one-sixth interest; that under those circumstances it was not necesssary that a sale of the four-tenths of an acre strip be had, as the the .other five-sixths interests had been acquired by it; and that an order be passed confirming the title of Cayce Land Company to the whole of the. four-tenths strip. A copy of the petition with notice of motion was served upon counsel for the defendant, to be made before his Honor, Judge Rice, at chambers, at Edge-field, on March 3, 1924, for an order granting the prayer of the petition. A copy of the proposed order was also served upon opposing counsel, who made this statement upon the original order: “Without consenting to this order, I hereby consent that the motion of this order be heard at chambers.” Counsel for the defendant did not appear at the hearing, and on March 3d or 4th (variously stated in the record), his .Honor, Judge Rice, signed an order directing the clerk of Court to pay to Cayce Land Company the $412.62 which had been retained to be paid to the owner of the outstanding one-tenth interest, and decreed:

“That the title of the plaintiff to the lot of land on the north side of the right of way of the Southern Railway as shown upon the plat thereof made by the Tomlinson Engineering Company, and certified to by R. E. Carwile, Esq., Special Referee in said cause, and hereto attached to be recorded herewith, be and the same is hereby, ratified and confirmed, and the defendant, G. A. Guignard, is hereby adjudged to surrender possession thereof to the plaintiff.”

In a subsequent proceeding, the defendant thus explained his absence from the hearing of this motion before his Honor, Judge Rice:

“That the defendant Guignard, believing at that time that the plaintiff had acquired all the outstanding interests in and to said lands, and being unwilling to carry on protracted and losing litigation as to the title to the said strips of land, did not appear before Judge Rice in opposition to plaintiff’s motion.”

Thereafter, on April 17, 1924, the defendant, Guignard, procured a conveyance from one W. H. Tucker, the husband of Mary Tucker, a daughter of Margaret Simons, a daughter of Campbell R. Bryce, of his interest as an heir at law of his wife who had died childless; her interest as one of the twelve children of Margaret Simons not having been acquired by the Cayce Land Company . when it procured conveyances from the other eleven children of their interest.

At a date not stated in the record, but between' April 17, 1924, and May 20, 1924, the defendant gave notice of a motion before his Honor, Judge DeVore, at Edgefield, on May 20, 1924, for an order permitting him to serve a supplemental answer, setting up the fact that, since the decree of his Honor, Judge Moore, and the order of his Honor, Judge Rice, he had purchased an interest in the outstanding interest of one-sixth of Margaret Simons in the land in question from one W. H. Tucker, claiming that Tucker was the surviving husband of Mary, a daughter of Margaret Simons. The motion was refused by his Honor, Judge DeVore, upon the ground, as stated in his order of May 31, 1924:

“I merely decide that the defendant, Guignard, has merely succeeded to the rights of W. H. Tucker, whatever they may be, at the time of the delivery of Tucker’s deed to him, and that such rights should be established in an independent action to which the defendant, Guignard, may make all persons parties, as their respective interests may appear.”

From this order the defendant appealed to this Court, which, on April 1, 1925, filed an opinion and judgment affirming the order of his Honor, Judge DeVore, and concluding thus:

“No supplemental answer can be filed in this case because the complaint has passed into judgment by the decrees of Judges Moore and Rice. If, after the decree was filed and it later was made to appear that one interested was not a party to the suit, and had an interest in the land, and Guignard purchased that interest, while we affirm Judge DeVore’s order refusing to allow Guignard to file a supplemental answer, that is without prejudice to Guignard bringing a new and separate suit to litigate any rights that he may have acquired in the property subsequent to that time.” 131 S. C., 296; 127 S. E., 364.

In the meantime, on June 28, 1924, the plaintiff served upon the defendant notice of its intention to apply to his Honor, Judge DeVore, at Edgefield, on July 3, 1924, for an order requiring the defendant to surrender possession of the “segment.” His Honor, Judge DeVore, refused the plaintiff’s motion mainly upon the ground that, since the decree of his Honor, Judge Rice, the defendant had acquired the interest of W. H. Tucker in the premises; that the defendant had surrendered all of the four-tenths of an acre strip, except the land occupied by the two spur tracks; that the defendant was in possession of the land occupied by these spur tracks, and owned, or claimed to own, the interest of W. H. Tucker therein; that each of the parties was in possession of a part of the strip, and were tenants in common of all of it; that one tenant in common could not dispossess his cotenant. He held:

“This order should not be construed as passing upon the ultimate rights of the parties, nor as adjudicating what in terest the defendant has in the premises under the deed executed to him by Tucker. The ultimate rights of the parties may be determined in a proper proceeding brought for that purpose.”

The plaintiff did not serve notice of intention to appeal from this order within 10 days required, but on August 1, 1924, 14 days thereafter, served a notice upon the defendant’s counsel “that, for the purpose of reserving the right to review the order of Honorable J. W. DeVore, Circuit Judge, heretofore filed in the above entitled cause,” the plaintiff excepts to said order upon certain stated grounds.

Proceedings under the decree of his Honor, Judge Moore, dated March 16, 1922, were suspended pending the appeal from the order of his Honor, Judge DeVore, refusing leave to file a supplemental answer; and, after that appeal was decided on April 1, 1925, the plaintiff resumed hostilities. On May 19, 1925, the Special Referee made a report, as he had been directed to do under the decree of his Honor, Judge Moore, of March 16, 1922, making the following findings:

(1) That the survey required by said decree, of the lands in possession of the defendant, Guignard, which constituted a part of the original Bryce tract, lying north of the right of way of the Southern Railway Company, according to the disclosure made by Guignard as required by the decree, had been made by Tomlinson Engineering Company, and a plat of same filed with the record, showing a strip of land between the north line of the railway’s right of way and lands of Guignard, containing four-tenths of an acre, across which were the spur tracks above described.

(2) That, while W. J. Cayce had title to, or was in possession of, the “acre lot,” he built thereon a storehouse, containing two stories, a dwelling house containing five rooms, and a small two-room frame cabin, and a barn and stable; that these buildings were on the lot at the time of the termination of the fee defeasible estate in John Campbell Bryce, March 15, 1915; that the rental value of the lot without the improvements would not exceed $5 per year; that the rental value of the lot with the improvements, from March 15, 1915, to July 1, 1923 (the date of the sale of the lot for partition under the decree of his Honor, Judge Moore, of March 16, 1922), with interest to January 1, 1925, was $3,203.91; that the value of the improvements by W. J. Cayce was $2,500. He declined to pass upon the contention of the defendant, Guignard, that in this accounting of the rental value of the premises he was entitled to credit for the value of the improvements which were erected on the premises by W. J. Cayce, and were upon at the time of the sale for partition in July, 1923.

(3) The other lands involved in the accounting ordered by the decree of his Honor, Judge Moore, of March 16, 1922, were: (a) The right of way of the Southern Railway, the easement being in the railway company, and the fee being originally in the children of Campbell R. Bryce, upon the termination of the fee defeasible in John Campbell Bryce; and (b) the strip of four-tenths of an acre lying between the north line of the right of way and. lands of Guignard.

(a) In reference to the right of way, the Special Referee found as follows: That R. W. Cayce (R. W. G. Cayce?) on July 5, 1897, conveyed to B. B. Cayce 3 Rá acres, known as the right of way of the Southern Railway Company; that B. B. Cayce contracted to sell this tract to G. A. Guignard, but never executed a deed therefor; that Guignard, acting upon his contract with B. B. Cayce, erected three small houses on the tract; that in October, 1906, the Southern Railway Company brought an action against the heirs at law of B. B. Cayce and Guignard to compel the removal of said houses; that it resulted in a decree requiring a conveyance of the tract constituting the right of way to the railway company, which was executed and delivered on April 1, 1907; that in August, 1916, Cayce Land Company, successors in title to the interests of six of the seven children of Campbell R. Bryce, who held the title after the termination of the fee defeasible in John Campbell Bryce, brought an action against the railway company virtually for compensation for the right of way, which action resulted in a judgment of $2,558.58 in favor of the Cayce Land Company (111 S. C., 115; 96 S- E-, 725), which was paid; that, upon the filing of the decree in that case, Guignard abandoned his claim to all of the land which B. B. Cayce had contracted to sell to him, except the strip of four-tenths of an acre which he continued in possession of, and used and occupied the houses thereon; that on June 10, 1907, Guignard entered into a contract with the receivers of the Seaboard Air Line Railway Company, whereby, under certain conditions, he constructed a spur track leading from the Seaboard’s track, south of the Southern Railway’s track, and crossing the right of way of the Southern (by its permission) by an under-pass, under the main line of the Southern, across the strip of four-tenths of an acre, and on over lands of Guignard to his brickyard on the north side of the Southern Railway; that the purpose of Guignard in building this spur track and from a clay hole on the south side of the tracks of both Southern and Seaboard to his brickyard on the .north side, and also by which he could haul brick and other freight from his brickyard to the Seaboard’s station at Cayce; that the cost to Guignard was $330 for the constructon of this spur track, and that the present value of it was $6,610.

In this connection, though not so detailed in the report, it appears that on September 21, 1909, Guignard entered into a contract with Southern Railway Company whereby under certain conditions, he constructed a spur track leading from the Southern’s track, over its right of way, across-the strip of four-tenths of an acre, and on over the lands of Guignard to his brickyard on the north side of the Southern Railway. The Special Referee continues:

“The other railroad track leading from the Southern Railway Company’s main line northeast across the four-tenths acre was erected by Guignard at his own expense, under license from the Southern Railway Company, in order to have a connecting line with that company, over which company’s road he ships and receives large quantities of freight.”

(b) In reference to the strip of four-tenths of an acre, this appears to be entirely outside of the lands of Guignard. The use of it by Guignard is sufficiently explained by what has preceded. As to it, the referee finds:

“The defendant, Guignard, has been using the two railroad tracks so erected by him across the four-tenths acre for the transportation of freight to and from his brickyard since March 15, 1915. By means of the two tracks built by Guignard under and across the right of way of the Southern 'Railway Company, the said railway company and the Seaboard Air Line Railway Company are enabled to receive and deliver large shipments of freight to and from the brick plant of the defendant Guignard. It appears to mé that the Southern Railway Company had the right to grant- to Guignard permission to build said track across its right of way, because such of its right of way is for railroad purposes.”

The Special Referee further found:

“The only part of the lands delineated in the Tomlinson plat, which the defendant, Guignard, has had possession of and used since the death of John Campbell Bryce, are those portions of the four-tenths of an acre lying north of the right of way of the Southern Railway Company, as shown by the Tomlinson plat, and he is liable for the rental value thereof under the order of Judge Mioore.”

He finds that the rental value of the three houses on the strip is $712.69, which includes interest up to January 1, 1925, and that their value, as of July 1, 1923, is $300; ,that without the houses it has no rental value. He likewise declined to pass upon the question whether the defendant is entitled to credit for the value of the improvements as against his accountability for the rental value.

In reference to the rental value of so much of the four-tenths of an acre as is actually occupied by the two spur tracks, the Special Referee overruled the contention of the plaintiff that it was entitled to the profits made, or the money saved, by Guignard on account of the operation of these spur tracks, and held-that “the rental value of this strip of land (that is, we interpolate, so much of it as is actually occupied by the two spur tracks), must be established by proof of what the premises would rent for, or from evidence of other facts from which a fair rental may be determined”; and fixed the rental value at $50 per annum, amounting to $565.32, which included interest up to January 1, 1925. He further held that the underpass and the spur tracks could not be considered as a permanent improvement or that they' enhanced the value of the strip of land.

On May 20, 1925, the plaintiff gave notice of a motion before his Honor, Judge DeVore, at Lexington, on May 27, 1925, “for an order directing the defendant, G. A. Guignard, immediately to surrender the possession of all of the said strip of land referred to in said affidavit to the plaintiff, and directing the Sheriff of the County of Lexington to put the plaintiff in possession of the said strip of land in its entirety, or directing the clerk of Court of Common Pleas for said County of Lexington to issue his writ of assistance to put the plaintiff in possession of the said strip of land.” The affidavit referred to was an affidavit of W. H. Lyles, Esq., attorney for the Cayce Land Company, upon which the motion was made, detailing the various proceedings hereinbefore set forth. It was opposed by affidavit of J. S- Vernér, Esq., attorney for Guignard, accompanied by various exhibits which are practically a repetition of what has hereinbefore been set forth.

Thereafter counsel agreed that the exceptions to the report of the Special Referee and the application of the plaintiff for a writ of assistance should be taken up before his Honor, Judge DeVore, at his chambers at Edgefield at such time as counsel might agree upon. At a later date the matters were presented to and argued before his Honor, Judge DeVore, at some time in June, 1925. After argument, counsel were requested to furnish the Court with forms of proposed decrees, which was done. On August 31, 1925, without formally signing either proposed decree, his Honor wrote at the foot of the decree proposed by the defendant’s counsel the following:

“At the hearing of the case before me at Edgefield, I was strongly inclined to grant the writ, and would have done so had it been incumbent upon me to decide the question at that time! but, after a more-thorough investigation, I am satisfied that it would be wrong to oust one tenant in common and put another in possession; that is, exclusive possession. Again the record shows that W. H. Tucker, the party from whom Guignard claims, was not a party to any action of proceeding had at the time of the orders of Judges Moore and Rice in the case, and hence could not be bound by them. After those orders), Guignard bought Tucker’s interest. Therefore, if Tucker was a tenant in common, Guignard is.

“For the reason stated hereinabove, it is ordered that application for the writ of assistance be, and the same is hereby, refused.”

On the same sheet his Honor added the following:

“As to the exceptions to the Special Referee’s report: I have not been able to find any good reason why the report ■of the Special Referee should be disturbed. The testimony .is quite conflicting on all matters involved in the exceptions.

“It is therefore ordered that the exceptions both by plain tiff’s and by defendant’s attorneys are hereby overruled, and that the said report be and the same is made the judgment of this Court. * * * [A matter relating to the fee of the Special Referee is omitted.]”

Evidently the Circuit Judge conceived that, as there were two matters before him, the application for the writ of assistance and the exceptions to the referee’s report, two orders were necessary. What he wrote might as well have been written upon the decree proposed by the plaintiff. What was intended to be done, and what was done, was to deny the application for the writ of assistance “for the reason stated above” (in his addendum, not in the body of the unsigned proposed decree), and to overrule the exceptions of both sides to the referee’s report. This is manifest from the fact that the proposed decree purports to sustain the exceptions of the defendant which are specifically overruled. Nothing in the proposed decree can therefore be considered as an adjudication by his Honor, Judge DeVore.

Strictly speaking, the plaintiff, therefore, is not entitled to rely upon any of the exceptions based upon the apparent rulings of the Circuit Judge in the defendant’s proposed decree. Its only grounds of exception could be to the ruling of Judge DeVore that the writ of assistance be refused; to his ruling that the exceptions of the plaintiff to the report of the referee be overruled; and to his failure to make other rulings. In view of the fact, however, that the decree of his Honor, Judge DeVore, was in a shape subject to misconstruction, and to the further fact that the defendant has interposed no objection to the form of the exceptions, we will consider the exceptions as properly amended upon motion, and as sufficient to raise the questions hereinafter discussed.

The questions fairly arising- upon the record may be thus stated:

(1) Was the plaintiff under the circumstances entitled’ to a writ of assistance to gain possession of the two strips of the “segment” occupied by the spur tracks ?

(2) What are the respective rights and obligations of the parties with referfence to the “acre lot” ?

(3) What are the respective rights and obligations of the parties with reference to the “right of way” ?

(4) What are the respective rights and obligations of the parties with reference to the “segment”?

As to the first question: Was the plaintiff under the circumstances entitled to a writ of assistance to gain possession of the two strips of the “segment” occupied by the spur tracks?

When the action was instituted for partition, it was supposed that the defendant, Guignard, owned the one-sixth interest of Mrs. Margaret Simons, a daughter of the testators, and one of the executory devisees, the plaintiff having acquired the other five-sixths interests. The decree .of his Honor, Judge Moore, of March 16, 1922, ordering partition was specifically based upon that theory. He did not, however, leave that question open for future decision in the case, but directed that the one-sixth interest be paid to Guignard, and provided in the decree:

“If he has not acquired such interest, and is not entitled thereto, he will be bound to indemnify the purchaser at such sale from any claim on account of the owners of such undivided one-sixth interest.”

The decree was a final judgment providing for the sale of the “acre lot” and a distribution of the proceeds between the plaintiff and Guignard, manifestly leaving the question of Guignard’s ownership of the one-sixth interest to be determined in some other proceeding. At some time not statedin the record, but between the date of Judge Moore’s the plaintiff and Guignard, manifestly leaving the question decree,. March 16 1922, and the date of Judge Rice’s decree March 4, 1924, the Cayce Land Company acquired the interest of all of the heirs at law of Margaret Simons except that of W. H. Tucker, and supposing, we assume that all of the interests had been acquired, the Cayce Land Company secured from his Honor, Judge Rice, the decree of March 4, 1924, directing the clerk of Court to pay to Cayce Land Company the amount reserved for the one-sixth interest confirming the title at the Cayce Land Company to the “segment,” and adjudging that Guignard surrender possession thereof to the Cayce Land Company. We do not think that the plaintiff was entitled to this decree, based upon the supposed acquisition of the outstanding interest of Mrs. Simons, after the decree of Judge Moore had been filed. The reservation in that decree of leave to apply at the ■ foot of the decree “for any order necessary to carry the same into effect,” applied to administrative orders only; but, as the defendant had due notice of the motion, made no objection thereto, and did not appear to resist it, in fact afterwards averring that he did not intend to- resist it, he must be held concluded by it.

At that time the plaintiff unquestionably was entitled to a writ of assistance to dispossess Guignard, in accordance with the decree of his Honor, Judge Rice. But, “while he slept, an enemy came.” The defendant discovered that the plaintiff had not acquired the interest of W. H. Tucker, surviving husband of Mary Tucker, a daughter of Margaret Simons, and, on April 17, 1924, took a conveyance of it from him, as hereinbefore explained. Then on June 28, 1924, the plaintiff gave notice of a motion before his Honor, Judge DeVore, on July 3, 1924, for an order granting a writ of assistance to dispossess Guignard. The matter was heard by Judge DeVore who, on July 18, 1924, filed an order refusing the plaintiff’s application for a writ of assistance upon the ground “that the defendant, Guignard, has made out a prima facie showing to the effect that he was in possession of the premises referred to as a tenant in common with the plaintiff, and such being true, he cannot be dispossessed until it is established whether or not he is a tenant in common with the plaintiff arid in possession of the premises as such.” Judge DeVore also held that it was admitted by the defendant that the plaintiff was in possession of all of the “segment,” except the strip actually occupied by the spur tracks. The plaintiff did not give notice of intention to, appeal from this order, but did, fourteen days later, give notice that it would reserve the right to appeal therefrom upon certain exceptions. Conceding, which we do not, that this was sufficient notice to bring the order in review, neither the notice of appeal nor the exceptions applies to the order, but both are confirmed to the order of his Honor, Judge DeVore of August 31, 1925. We think clearly, therefore, that the plaintiff is concluded by the order of July 18, 1924, and that it is not necessary to review the order of August 31, 1925 , upon a second application for the writ.

As to the second question: What are the respective rights and obligations of the parties with reference to the “acre lot”?

It will be seen from the decree of his Honor, Judge M)oore, of March 16, 1922, and from the opinion of this Court in 124 S. C., 443; 117 S. E., 644, that this lot is a part of the land purchased by R. W. G. Cayce and James Cayce at the foreclosure sale in the case of Hope v. Bryce; that they held it under the same trusts as it had been held by Elizabeth R. Cayce, namely, for the benefit of John Campbell Bryce for life, and at his death, without issue, for the benefit of his six sisters, in whom it was vested by executory devise, upon the termination of a fee defeasible in John Campbell Bryce; that it was conveyed by R. W. G. Cayce and James Cayce to Wilie Jones; and that “the defendant (Guignard) is the successor in interest by successive conveyances, under this deed of Wilie Jones to W. J. Cayce, and is now in possession claiming in fee simple this one-acre tract.” The defendant, Guignard, acquired his interest October 2, 1899, and held the lot in possession from that time until October 15, 1915, the date of the death of John Campbell Bryce, the tenant in fee defeasible, and from that time until the sale for partition in July, 1923. Under the decree of Judge Moore, Guignard was required to account for the “rental value” of the lot, as trustee for the executory devisees, for the period of from March 15, 1915, to July 1, 1923. The referee found that W. J. Cayce, a former owner, had placed improvements upon the lot of the value of $2,500, and that the rental value, with improvements, for the period, including interest to January 1, 1925, was -$3,203.91; and without improvements, 8J2 years at $5 per year, $42.50. The defendant contended that he was entitled to offset the value of the improvements $2,500, against the rental value, with the improvements $3,203.91. The referee declined to pass upon that question, upon the ground, as he states, that Judge Moore, in his decree of March 16, 1922, had held that the defendant was not entitled “to compensation for improvements found upon the square acre at the time of the commencement of this action.” The report of the referee,' in reference to this matter, was confirmed by the decree of his Honor, Judge DeVore, of August 31, 1925. The defendant in his exceptions to this decree contends that the matter is not res adjudicada, by the decree of Judge Moore, affirmed by this Court in 124 S- C., 443; 117 S. E., 644, upon the ground that the specific question was not then before the Court, and that, admittedly by the decree, the facts upon which the question could be determined were not before the Court. We appreciate the force and the justice of the defendant’s contention (Scaife v. Thomson, 15 S. C., 337. William v. Holmes, 4 Rich. Eq., 475. Annely v. De Saussure, 26 S. C., 497; 2 S. E., 490; 4 Am. St. Rep., 725. Sutton v. Sutton, 26 S. C., 33; 1 S. E., 19. McGee v. Hall, 28 S. C., 562; 6 S. E., 566. Cain v. Cain, 53 S. C., 350; 31 S. E., 278; 69 Am. S. Rep., 863. Tedder v. Tedder, 109 S. C., 451; 96 S. E., 157, and Id., 115 S. C., 91; 104 S. E., 318. Petts v. Wright, 177 S. C., 409; 109 S. E., 649) ; but we are constrained to hold that the matter was specifically before Judge Moore, and was decided against the contention of the defendant. The Special Referee in his first report had found that the defendant was entitled to credit for the value of the improvements, $1,250. Upon exceptions'to his report, the Circuit Judge held:

‘T also overrule the referee’s conclusion that the defendant, Guignard, is entitled to compensation for improvements found upon the square acre of land at the time of the commencement of this action.”

It is true that he adds:

“It does not appear by whom the improvements were put upon the property nor does it appear how much those improvements add to the present value of the property,” • — -from which it might be concluded that the difficulty in his way was a deficiency in evidence; but he continues, as appears at page 447 of the case as reported in 124 S. C., (117 S. E., 644) and holds that, where the improving holder is a trustee, as well as a life tenant, he is not entitled to compensation. We are not to be understood as passing upon this proposition one way or the other; only to hold that the matter has been adjudicated.

The rights of the defendant in the lot as a tenant in common, with the Cayce Land Company, under his alleged acquisition of an undivided interest in the property by conveyance of the interest of W. H. Tucker, are properly to be determined in the proceeding suggested in the opinion of this Court (131 S. C., 296; 127 S. E., 364), and in the decree of his Honor, Judge DeVore, of August 31, 1925. It appears that an action is now pending for that purpose instituted since the decision in 124 S. C. (117 S. E., 644). That interest appears to be arrived at thus: Margaret Simons was entitled to one-sixth; her husband, at her death, to one-third of one-sixth, leaving two-thirds for the twelve children; each child was entitled to one-twelfth of two-thirds of one-sixth; and the husband (W. H. Tucker) of the daughter Mary to one-half of her interest; that is to say, one-half of one-twelfth of two-thirds of one-sixth equals 1/216.

As to the third question: What are the respective rights and obligations of the parties with reference to the “right of way”?

It is manifest from the foregoing statements that the Cayce Land Company, as grantee of all of the interest- of the executory devisees except one, and the heirs of Margaret Simons (with an exception hereinafter noted), have received satisfaction in full for compensation to which they were entitled for the acquisition by the railway company of its right of way.

While the Cayce Land Company has received full compensation for its interest acquired by the railway company so far as the easement of right of way is-concerned, it has retained the fee-simple title in the land to the extent of its interest, 215/216. If the defendant, with the consent of the railway company, has installed an additional servitude upon the land, as a matter of course he must be held accountable to the owners of the fee therefor.

The referee found that the rental value of the three houses placed on the “segment” in question was $712.-69, which included interest up to January 1, 1925, and that their value as of July 1, 1923, was $300; that without the houses it had no rental value. He declined to pass upon the question whether the defendant was entitled to credit for the value of the improvements as against his accountability for the rental value. This part of the report was confirmed by the detree of his Honor, Judge DeVore, of August 31; 1925. The defendant contends that he is entitled to a credit of $300, the -value of the improvements placed upon the strip by him, as against his accountability for the rental value. This question was not passed upon by his Honor, Judge Moore, for, at the time of his decree, and before the disclosure by Guignard ordered by the decree, it was not known to what extent Guignard was in possession outside of the right of way. Guignard went into possession of this strip without a title other than an equitable right under his contract with B. B. Cayce, which is shown to have covered no part of the land outside of the railroad company’s right of way. He, therefore, as to it was a trespasser, and not entitled to compensation for improvements. 14 R. C. L., 21; note, 62 Am. Dec., 529.

It will be seen at a glance that the spur track, under license agreement with the Southern, stands upon a different footing from that over the right of way of the Southern under license agreement with the Seaboard, although the latter was constructed by the license of the Southern.

Under the authorities there cannot be a question but that the license agreement by which the Southern permitted the spur track from -its track to the brickyard to be constructed across its right of way was clearly for a legitimate railroad purpose, and a justifiable use of its right of way, not an additional servitude. Shelton v. Sou. Cotton Oil Co., 106 S. C., 195; 90 S. E., 752. Hohl v. Iowa C. Ry. Co. et al. (1913), 162 Iowa, 66; 143 N. W., 852. 853. Anderson v. Interstate Mfg. Co (1911) 152 Iowa, 455; 132 N. W., 812, and cases in note 36 L. R. A., (N. S.), 513, 520. Hartford Fire Ins. Co v. Chicago, etc., R. Co., 175 U. S. 99; 20 S. Ct., 33; 44 L. Ed., 84. Gurney v. Elevator Co. (1895), 63 Min., 70; 65 N. W., 136; 30 L. R. A., 536, 537. Stockyards v. Keith, 139 U. S., 128; 11 S. Ct., 461; 35 L. Ed., 75. Cargill Co. v. Minn., 180 U. S., 452; 21 S. Ct., 423; 45 L. Ed., 619. So Ry. Co. v. Blunt & Ward (C. C.), 155 F., 498, 499. See , also, Roby v. R. Co., 142 N. Y., 180; 36 N. E., 1053. R. Co. v. Bullard, 120 Mich., 79 N. W., 635; Detroit v. Little, 146 Mich., 373; 109 N. W., 672.

The question, however, of the validity of the license of the Southern, by which the Southern permitted the spur track from the track of the Seaboard over its right of way by the underpass to the brickyard to be constructed by Guignard, is a much more serious one.

There appears to be no connection at the underpass or elsewhere between the Seaboard spur track and the Southern railway. The Seaboard spur track was, therefore, constructed solely for its benefit and under its authority for its railroad purposes. The Southern had no more authority to permit the use of its right of way for the benefit solely of the Seaboard than it had for the benefit solely of an independent industry which brought no revenue to it.

In 1 Lewis Em. Dom. (3d Ed.), § 221’, it is said:

“A line of telegraph or telephone on a railroad right of way is an additional burden for which compensation must be made to the owner of the fee, unless the line is constructed for the use of the railroad company in the operation of its road and dispatch of its business. * * * Nor can a railroad company grant a part of its right of way to the use of another company, as against the owner of the fee.”

“Where a railroad company owned only an easement, it could not license third persons to construct other lines on its right of way, and persons attempting to do so were merely trespassers.” Muncie v. Joliff, 59 Ind. App., 349; 109 N. E., 433.

“A railroad company has no such title to its • right of way as authorizes it to permit the erection thereon of a commercial telegraph line disconnected from the railroad operation.” Tel. Co. v. Ry. Co., 145 Tenn., 85; 237 S. W., 64.

“But it has been held that building another railroad on a portion of the unused right of way of a company which has acquired an easement only in the land, creates an additional servitude, and the consent of the owner of the land must first be obtained and compensation made to him for the damage.” 22 R. C. L., 868.

“In the case of telegraph lines upon a railroad right of way, to be used purely for commercial purposes, the fee owner is entitled to additional compensation.” 22 R. C. L., 858.

It follows that the occupation by Guignard 'of so much of the right of way of the Southern Railway Company as was necessary to construct the spur track from the Seaboard railroad to his brickyard is an additional servitude and a trespass upon the land held in fee by the Cayce Land Company and the heirs of Mary Tucker, and that under the decree of his Honor, Judge Moore, of March 16, 1922, he is accountable to the Cayce Land Company for the rental value thereof to the extent of its interest in the fee, from the date of such occupation.

As to the fourth question: What are the respective rights and obligations of the parties with reference to the “segment” ?

By reference to the Tomlinson plat, it will be seen that both the Southern and the Seaboard spur tracks have been constructed over and across the strip under discussion; the Southern spur track extending about 50 feet, and the Seaboard about 10, it is clear that as to each of them the defendant Guignard has been a trespasser since the termination of the fee defeasible in John Campbell Bryce, March 15, 1915, at least up to the time he is alleged to have acquired the interest of Tucker, April 17, 1924. Ordinarily the executory devisees or their successors in title would have had. a cause of action against Guignard for damages on account of this continued trespass, with the consequent right to require him to remove the cause of the trespass, but it appears that they preferred to hold him liable as a trustee for them, and accountable for the rental value of the portions of the strip occupied by the spur tracks. Accordingly we find that under the decree of his Honor, Judge Moore, of March 16, 1922, the defendant was required to account for “the rental value of said lands occupied by him since the death of the tenant in fee defeasible, John Campbell Bryce, which occurred in the year 1915.” In obedience to this decree the Special Referee overruled the contention of the plaintiff that it was entitled to the profits made or the money saved by Guignard on account of the operation of these two spur tracks, and held that “the rental value of this strip of land (evidently meaning the two strips occupied by the spur tracks) must be established by proof of what the premises would rent for or from evidence of other facts from which a fair rental may be determined,” and fixed the rental value at $50 per annum, amounting to $565.32, which included interest up to January 1, 1925. He further held that the underpass and the spur tracks could not be considered as permanent' improvements or that they enhanced the value of the strip of land. This portion of the referee’s report was confirmed by the decree of his Honor, Judge DeVore, of August 31, 1925. The plaintiff’s contention is that Guignard was a trustee for the executory devisees and their successors in title of the strips covered by these two spur tracks laid upon the four-tenths of an acre strip; «that his construction of the spur tracks across this strip must be deemed in law to have inured to the benefit of the trust estate which he held; and that, therefore, Guignard should be held responsible to the beneficiaries for what the spur tracks as a whole were worth to him; that during the period mentioned Guignard had hauled ■ 18,321 carloads of freight over the spur tracks at a saving to him of $5 per car, which, without interest, would amount to $91,604; that the spur tracks were essential to his business as a manufacturer and shipper of brick; that this was a profit derived by Guignard, the trustee, by the withholding of the trust property from the beneficiaries, and that he should account therefor.

We think that it might as well have been contended by the Cayce Land Company, when it sued the Southern Railway Company for compensation for the right of way which it held from the grantors of the fee defeasible, that the Southern Railway Company occupied the position of trustee for the executory devisees, and was accountable for the entire profits which it had made from the earnings of its railroad as a whole. Such a proposition is shocking.

We doubt very much if Guignard, who took possession of this strip under a contract with B. B. Cayce, covering the 3}4 acres of land constituting the right of way of the Southern Railway Company, the strip being outside of that right of way, can be so connected with one who held under the tenant in fee defeasible as to constitute him a trustee for the executory devisees and their successors in title. This situation had not developed when Judge Moore’s decree was signed, and there is nothing to show that he meant to hold that one in possession under these circumstances was a trustee for the executory devisees. Guignard was mistaken in the extent of land covered by his contract with B. B. Cayce, and as to this strip he was a trespasser upon land which belonged, after the termination of the fee defeasible, to the executory devisees and their successors in title.

Besides, the plaintiff is concluded by the decree of his Honor, Judge Moore, of March 16, 1922, which specifically requires the defendant to account for the rental value of the portions of the land which the defend ant had in possession. The conclusion of the Special Referee upon this point is satisfactory to the Court.

The question as to the disposition of these two sections of the spur tracks, in the event that Guignard should be considered either as a trustee or as a trespasser, is not now before this Court.

The reporter will incorporate in the report of the case: (I) The complaint; (2) the answer; (3) the first report of the Special Referee December 6, 1921; (4) the decree of Judge Moore of March 16, 1922, need not be incorporated, as it appears in 124 S. C., 443; 117 S. E., 644; (5) the order of Judge Rice, Miarch 4, 1924; (6) the second report of the Special Referee, May 19, 1925; (7) the order of Judge DeVore, May 31, 1924; (8) the order of Judge DeVore, July 18, 1924; (9) the decree of Judge DeVore, August 31, 1925, just as it appears in connection with the order proposed by the defendant; (10) the plaintiff’s exceptions to the decree of Judge DeVore, August 31, 1925; (II) the defendant’s exceptions to same; (12) a reduced reproduction of the Tomlinson plat.

The judgment of this Court is that the judgment of the Circuit Court be affirmed, except as the same is herein modified, and that the case be remanded to that Court for further proceedings as may not be inconsistent with the conclusions herein announced.

Mr. Chief Justice Gary and Messrs. Justices Watts, Brease, and StabeER, concur.