The opinion herein was filed July 24th, but remittitur held up on petition for rehearing until
The opinion of the Court was deliv-
ered by
Mr: Chief Justice Pope.
On the 26th day of October, 1904, the plaintiff began its action. In its complaint it gives a detailed account of the creation and continuation of the plaintiff as a railway corporation, which, as far as this action is concerned, was said to have a right of way from the station of Dover, in Daurens county, to the town of Laurens, in said county, 100 feet in width from the center of the roadbed on each side of the track; and that:
The defendant, which is a corporation, in violation of the plaintiff’s easement in the lands lying on each side of the railroad from the center of the track, has proceeded to erect a large number of dwelling houses, about thirty or forty, and a store building and an office building on plaintiff’s said right of way, and also proceeded to dig and excavate ditches and to raise a pond of water on said right of way, and that although the plaintiff has demanded that the defendant shall no longer interfere with the plaintiff’s right of way as aforesaid, the said defendant continues to occupy and refuses to remove the same, to the plaintiff’s great and permanent injury; and the plaintiff alleges that such use of said lands by the said defendant is wholly inconsistent with plaintiff’s
right of way thereover and is calculated to deprive the plaintiff permanently of the same.
The answer of the defendant denies each and every allegation of the complaint except as is hereinafter admitted or explained.
It admits that it erected certain houses and raised a pond of water in said premises situate in the city of Raurens, not far from the railroad operated by the plaintiff, but it alleges that said improvements are upon the land owned in fee by this defendant, in which this plaintiff has no interest whatever, by easement or otherwise; it further alleges that the title of said land was acquired by this defendant by purchase, and this defendant and persons under whom it claims have been in open, notorious and exclusive possession of said land for a period of more than twenty years before the commencement of this action, and that plaintiff nor its grantors has exercised any acts of ownership over the same for ten, twenty or forty years before the commencement of this action.
The defendant further alleges: “That, the improvements were made in full view and with full knowledge on the part of the plaintiff, and that plaintiff acquiesced in the erection of said improvements, and consented and assisted in the said work, and is estopped to question the title of defendant or its rights to occupy and enjoy the said premises.”
The defendant further alleges: “That the act referred to in the complaint was amended by an act, approved December 19, 1849, and defendant pleads said amendment by way of defense to this action.”
The defendant alleges that the right of way supposed to have been acquired by plaintiff was abandoned and all rights thereto were lost and forfeited. Wherefore, defendant demands that the complaint be dismissed, with costs.
After hearing the pleadings, a motion came before Judge Klugh for an order of reference, which was resisted by the defendant; the Judge holding:
“After hearing the argument of counsel, I am satisfied that the issue of title to real estate is raised by the answer, which issue must first be tried by a jury. The motion to refer the cause is, therefore, refused.”
At the Spring term, 1907, of the Court of Common Pleas for Laurens county, the cause came on to be heard before Judge Watts and a jury, and after hearing counsel, Judge Watts held:
“I will submit to that jury the question as to whether or not you are entitled to recover the easement as sued for, and allow them to interpose as defenses to that the statute of limitations, abandonment and estoppel and reserve the betterment feature.”
Thereupon both sides offered testimony and made requests to the Circuit Judge to' charge; a form of verdict was submitted to the jury as follows:
“The first question is, has the plaintiff an easement in the lands in dispute? You sign that No or Yes; if you think they have no easement in it, then sign it No. Write No after that, then yo.u need not go any further; if you write it Yes, then you go to the second question; if so> how many feet on each side from the center of the roadbed? There you find a 100 feet, ninety feet, seventy-five feet, fifty feet, eight, ten or five feet, or whatever you may find it is.”
The verdict of the jury was as follows:
1. “Has the plaintiff an easement in the lands in dispute? Yes.
2.
“If so, how many feet on each side from the center of the roadbed? Fifteen (15) feet. G. C. Byrd, Foreman.
“May 25, 1907.”
A motion was then made for a new trial on the minutes of the Court, which was refused.
The plaintiff then appealed to this Court upon fifteen grounds, which must be reported. We will now consider these grounds in their order:
1
1. It is certainly true that the established law in this State so far as the Southern Railway and also the Laurens
Railroad, as well as the Columbia, Newberry and Laurens Railroad are concerned, is that under their charters the said railroads acquired a right of way for railroad purposes of one hundred feet on each side of the roadbed, there being no written contract between said railroads and the owners of lands through which said railroads were constructed in reference to this right of way.
Ragsdale
v.
Ry. Co.,
60 S. C., 389, 38 S. E., 69;
Ry.
v.
Beaudrot,
63 S. C., 267; 41 S. E., 299;
Hill
v.
Ry.,
67 S. C., 548, 46 S. E., 486;
Harmon
v.
Ry.,
72 S. C., 228, 51 S. E., 689. But in
Ry.
v.
Beaudrot, supra,
it was held, in discussing the interference with the alleged right of way by a substantial fence enclosing what defendant claimed exclusive of any right therein by plaintiff, that “such an assertion of right to exclusive occupancy of the land is not compatible with the right of easement belonging to the plaintiff.” In the case at bar, there was a positive appropriation by the defendant of a part of the right of way, reducing the same in some instances to about fifteen feet. This being so, it followed necessarily that so much of the right of way of the original one hundred feet on each side as was covered by the defendant’s buildings was an appropriation to that extent of plaintiff’s original right of way. Therefore, this matter of abridgment being submitted to the jury, under the testimony offered by both sides, the original right of way of one hundred feet was reduced to fifteen feet. This doctrine was also asserted in the case of
Hill
v.
So. Ry. Co., supra,
at pages 552 and 553.
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The opinion herein was filed July 24th, but remittitur held up on petition for rehearing until
The opinion of the Court was deliv-
ered by
Mr: Chief Justice Pope.
On the 26th day of October, 1904, the plaintiff began its action. In its complaint it gives a detailed account of the creation and continuation of the plaintiff as a railway corporation, which, as far as this action is concerned, was said to have a right of way from the station of Dover, in Daurens county, to the town of Laurens, in said county, 100 feet in width from the center of the roadbed on each side of the track; and that:
The defendant, which is a corporation, in violation of the plaintiff’s easement in the lands lying on each side of the railroad from the center of the track, has proceeded to erect a large number of dwelling houses, about thirty or forty, and a store building and an office building on plaintiff’s said right of way, and also proceeded to dig and excavate ditches and to raise a pond of water on said right of way, and that although the plaintiff has demanded that the defendant shall no longer interfere with the plaintiff’s right of way as aforesaid, the said defendant continues to occupy and refuses to remove the same, to the plaintiff’s great and permanent injury; and the plaintiff alleges that such use of said lands by the said defendant is wholly inconsistent with plaintiff’s
right of way thereover and is calculated to deprive the plaintiff permanently of the same.
The answer of the defendant denies each and every allegation of the complaint except as is hereinafter admitted or explained.
It admits that it erected certain houses and raised a pond of water in said premises situate in the city of Raurens, not far from the railroad operated by the plaintiff, but it alleges that said improvements are upon the land owned in fee by this defendant, in which this plaintiff has no interest whatever, by easement or otherwise; it further alleges that the title of said land was acquired by this defendant by purchase, and this defendant and persons under whom it claims have been in open, notorious and exclusive possession of said land for a period of more than twenty years before the commencement of this action, and that plaintiff nor its grantors has exercised any acts of ownership over the same for ten, twenty or forty years before the commencement of this action.
The defendant further alleges: “That, the improvements were made in full view and with full knowledge on the part of the plaintiff, and that plaintiff acquiesced in the erection of said improvements, and consented and assisted in the said work, and is estopped to question the title of defendant or its rights to occupy and enjoy the said premises.”
The defendant further alleges: “That the act referred to in the complaint was amended by an act, approved December 19, 1849, and defendant pleads said amendment by way of defense to this action.”
The defendant alleges that the right of way supposed to have been acquired by plaintiff was abandoned and all rights thereto were lost and forfeited. Wherefore, defendant demands that the complaint be dismissed, with costs.
After hearing the pleadings, a motion came before Judge Klugh for an order of reference, which was resisted by the defendant; the Judge holding:
“After hearing the argument of counsel, I am satisfied that the issue of title to real estate is raised by the answer, which issue must first be tried by a jury. The motion to refer the cause is, therefore, refused.”
At the Spring term, 1907, of the Court of Common Pleas for Laurens county, the cause came on to be heard before Judge Watts and a jury, and after hearing counsel, Judge Watts held:
“I will submit to that jury the question as to whether or not you are entitled to recover the easement as sued for, and allow them to interpose as defenses to that the statute of limitations, abandonment and estoppel and reserve the betterment feature.”
Thereupon both sides offered testimony and made requests to the Circuit Judge to' charge; a form of verdict was submitted to the jury as follows:
“The first question is, has the plaintiff an easement in the lands in dispute? You sign that No or Yes; if you think they have no easement in it, then sign it No. Write No after that, then yo.u need not go any further; if you write it Yes, then you go to the second question; if so> how many feet on each side from the center of the roadbed? There you find a 100 feet, ninety feet, seventy-five feet, fifty feet, eight, ten or five feet, or whatever you may find it is.”
The verdict of the jury was as follows:
1. “Has the plaintiff an easement in the lands in dispute? Yes.
2.
“If so, how many feet on each side from the center of the roadbed? Fifteen (15) feet. G. C. Byrd, Foreman.
“May 25, 1907.”
A motion was then made for a new trial on the minutes of the Court, which was refused.
The plaintiff then appealed to this Court upon fifteen grounds, which must be reported. We will now consider these grounds in their order:
1
1. It is certainly true that the established law in this State so far as the Southern Railway and also the Laurens
Railroad, as well as the Columbia, Newberry and Laurens Railroad are concerned, is that under their charters the said railroads acquired a right of way for railroad purposes of one hundred feet on each side of the roadbed, there being no written contract between said railroads and the owners of lands through which said railroads were constructed in reference to this right of way.
Ragsdale
v.
Ry. Co.,
60 S. C., 389, 38 S. E., 69;
Ry.
v.
Beaudrot,
63 S. C., 267; 41 S. E., 299;
Hill
v.
Ry.,
67 S. C., 548, 46 S. E., 486;
Harmon
v.
Ry.,
72 S. C., 228, 51 S. E., 689. But in
Ry.
v.
Beaudrot, supra,
it was held, in discussing the interference with the alleged right of way by a substantial fence enclosing what defendant claimed exclusive of any right therein by plaintiff, that “such an assertion of right to exclusive occupancy of the land is not compatible with the right of easement belonging to the plaintiff.” In the case at bar, there was a positive appropriation by the defendant of a part of the right of way, reducing the same in some instances to about fifteen feet. This being so, it followed necessarily that so much of the right of way of the original one hundred feet on each side as was covered by the defendant’s buildings was an appropriation to that extent of plaintiff’s original right of way. Therefore, this matter of abridgment being submitted to the jury, under the testimony offered by both sides, the original right of way of one hundred feet was reduced to fifteen feet. This doctrine was also asserted in the case of
Hill
v.
So. Ry. Co., supra,
at pages 552 and 553. This exception is overruled.
2. One great difficulty of the plaintiff in presenting its exceptions is, that 'by piecemeal it seeks to present objections to the charge of his Honor; we have read with care not only these exceptions, but also read the charge as a whole, and we find that the charge of his Honor when construed, as a whole, must be sustained. This exception is overruled.
3. The Circuit Judge was considering the effect of estoppel, and within proper limits he sustained the application
of estoppel as against plaintiff’s rights; the jury so found, and it is, therefore, a closed book to us, so to speak.
4. We do not see how there could be two opinions; the Judge very properly held: “If you believe that the railroad has an easement of 100 feet there, or any other number of feet on each side of the track, and the cotton mill went and built houses on that and the railroad had no knowledge of the fact that they were putting them up there and did not mislead them, and did not give them permission to do- so, or anything of the sort, then the railroad is entitled to win.” Now, the Circuit Judge fairly left it to the jury to say whether, under the testimony, the plaintiff had no- knowledge of the fact and did not mislead them or give them permission to do it; the testimony, unfortunately for the plaintiff, tended to negative the existence of any such fact, and the jury, therefore, found against it.
The Circuit Judge thus having properly submitted this matter to the jury, the exception cannot be sustained.
5. When the matter was in issue as to what part of the original roadbed of the railroad had been lost to the railroad by its laches, the trend of the testimony established that what was known as the three houses erected by J. O. C. Fleming in 1882, within thirty feet of plaintiff’s roadbed, and that such houses remained as originally constructed and was sold in 1895 to the defendant cotton mill, and said three hbuses remained as originally constructed up to the present time, the finding of the jury included those three houses in that part of the original roadbed of the railroad and needed no particular mention in their verdict. There was no error here. It is true Mr. Justice Jones in
Railway
v.
Beaudrot, supra,
did say: “We do not say that the mere use or cultivation of land within the right of way of said railway company is such adverse use as would give currency to the statute of limitations, unless the use is inconsistent with the easement; but we do say that the enclosing of lands within the right of way, under a- claim of exclusive right and occupation and a refusal to remove the enclosure after a
demand therefor, is some evidence of the assertion of a claim incompatible with plaintiff’s alleged easement, under which the issues raised ought to have been submitted to the jury.” T-hus showing that the learned Justice had some question in his mind as to whether the mere
use or cultivation
of lands within the right of way would give currency to the statute, yet he by no means seeks to convey the idea that where a right of way is used by a defendant by placing houses thereon; he suggests that such right of way is only taken where occupied by obstruction.
Really where conduct of defendant evidences a fixed resolve to deny the right of way to the extent claimed by the plaintiff it is such an interference with plaintiff’s asserted right of way as will deny the same for a greater space than fifteen feet
as found by the jury.
This exception is overruled.
6. The sixth exception is overruled for the reasons just before recited.
7.
We see no reason why the Court should restrict, by its language, the use of so much of plaintiff’s roadbed, up to within fifteen feet of the track should be guarded by the Court, and the question of title has been raised, the defendant has joined issue thereon, the action of the jury is response to that issue. No words, therefore, should qualify the finding of the jury. This exception is overruled.
8. There is no question but that the grant of one hundred feet on each side of the roadbed was for railroad purposes; this has been settled by repeated adjudications of this Court, and this exception is overruled.
9. If there had been an issue framed which had, applied to the Fleming houses now owned by the defendant there might be some excuse for plaintiff’s request, but there was none such, and we feel, therefore, that this exception must be overruled.
10. The matter of the silence of the plaintiff while the defendant was placing $50,000 worth of improvements upon the alleged right of way of the plaintiff, as to whether the
same was from ignorance in fact, of the right of the railway company has been settled by the verdict of the jury against the railroad. This was matter peculiarly within their province : we will not interfere.
11. We see no reasons to give any effect to the assertions that there was no evidence, that there had never been any abandonment by the plaintiff or by the Laurens Railroad of its right of way. All these matters were submitted to the jury, and by their finding they 'held that the plaintiff had no right to claim under its right of way more than fifteen feet on each side of its roadbed. This exception is overruled.
IS. We have virtually passed upon this exception in what has been already said, and overrule the same.
13. The jury to whose arbitrament the question was submitted have found that the plaintiff, so far as the defendant is concerned, is restricted to the land embraced within that space of land extending fifteen feet on each side of the roadbed. This is sufficient answer to this exception.
14. Inasmuch as the easement of the plaintiff has been in an action between the plaintiff and defendant herein restricted to the fifteen feet on each side of plaintiff’s roadbed, the answer is complete to this exception.
15. The verdict of the jury is inconsistent with the view that the defendant had knowledge in law of the rights of the plaintiff to the right of way whereon the defendant erected its structures. As to the effect of the act of the Legislature giving the right of way was a question within the purview of the issues and submitted to the jury, the jury has responded adversely to the plaintiff’s contention. We see no reason why the decree of his Honor, the Circuit Judge, should be interfered with. Let this exception be overruled.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.