The opinion of the 'Court was delivered by
Mr. Justice Gary.
The facts1 are thus stated in the decree of his Honor, the Circuit Judge:
“This is .an1 action om the equity side of the court, brought to require defendant to remove a fence off thie right of way of plaintiff, which is a corporation1 operating a railroad between the cities of Columbia and Greenville, in the State of South Carolina, and known formerly as the Columbia and Greenville Railroad. Counsel agreed upon the following issues, which were submitted oot of Chancery, to1 a jury, viz.:
1. “Is the fence erected by defendant, on or about March 8, 1904, on the right of way of plaintiff ?
£. “Hias plaintiff 'ever 'been in possession of said land as right of way ?
31. “Has plaintiff 'ever abandoned the right of way upon which the fence is erected?
4. “Has the defendant, his -ancestors or grantors, been in adverse possession of the land in dispute, for a .period of ten (101) years, before the commencement of this action, under claim! of title and right of the premises ?
5. “Has the defendant, his -ancestors or grantors, been in adverse possession of the land in dispute, under claim of title and right of the premises, for a period of forty(40) years-, before the commencement of this action ?
“The jury answered' ‘yes’ to the first two questions and ‘no’ to questions 3, 4 and 5. In other words, they find that plaintiff is in possession of the land ¡as a right of way upon which the fence is erected, and has never abandoned the sarnie; that the defendant, his ancestors, grantors and predecessors, have not 'been in adverse possession of the land in dispute for a period of ten years, nor for a period if forty years, -before the commencement of this- action under -claim of right and title to' the premises. It followed that plaintiff is -entitled to the relief demanded in the -complaint.”
The defendant appealed upon exceptions which will be set out in the report of the case. They will be considered in regular order.
1
First and Second Exceptions:
In -the first place, if the testimony could be regarded as material, its tendency was to benefit
the defendant,
by showing, that the use of the property had not been necessary to the plaintiff’s. enjoyment of its rights, untill the action was commenced, and for this reason it 'had- been theretofore abandoned. The defendant can not, therefore, complain that the testimony was prejudicial to its rights.
2
In the second place, the Court of Common Pleas, in the exercise of its chancery powers, can award compensatory damages.
Bird
v.
R. R.,
8 Rich. Eq., 46;
McClellan
v.
Taylor,
54 S. C., 430, 32 S. E., 527;
Railroad Co.
v.
Victor Mfg. Co., ante,
266. Such damages may be recovered after the commencement of the action when the injury is continuous in its nature.
Puckett
v.
Smith,
5 Strob., 26;
Bratton
v.
Catawba P. Co.,
80 S. C., 260. And it is not necessary to allege those damages, that are the direct result of, and incidental to, the wrongful act.
Levy v. Legg,
23 S. C., 282;
Norris v. Clinkscales,
47 S. C., 488, 25 S. E., 797;
Welborn
v.
Dixon,
70 S. C., 108, 49 S. E, 232.
The testimony was competent upon the question, whether the plaintiff suffered damages after the commencement of the action.
The fact that the plaintiff did not insist upon the recovery of damages, did not render testimony prejudicial to the rights of the defendant incompetent which otherwise would have 'been.' competent.
Third and Fourth Exceptions:
His Honor, the Circuit Judge, refused to 'charge the requests on the ground' that they were inapplicable. In so far, however, as they were applicable, the appellant received the benefit of them in other portions of the charge.
3
Fifth Exception:
The presumlption was that the plaintiff, or its predecessors, took one hundred feet on each side from the center of the track.
Harman
v.
R. R.,
72 C. C., 228, 51 S. E., 689;
Railroad v. Victor Mfg. Co., ante,
266.
4
Sixth Exception:
The rights of the owner of the fee and the railroad company are thus dearly stated by Mr. Justice Jones in the case of
Railway
v.
Beaudrot,
63 S. C., 266, 269, 41 S. E., 299: “Having a mere easement in the .land, 'plaintiff’s right of possession is not exclusive, except in so far as the land covered by the right of way is actually needed for the purpose of constructing, operating or maintaining the railroad. 'Subordinate to this right, acquired under the State's eminent domain, the owner of -the fee has the right to the use and possession of-the land covered by the right of way, for any purpose not incompatible with the purposes for which the easement was granted or acquired. * * * As already stated, it appears in the ‘Case’ that the defendant had erected within the alleged right of way a substantial- fence, enclosing what -defendant claimed, exclusive of any right therein- by plaintiff. Stodh. an assertion of right to exclusive occupancy of the l-and is not compatible with the right of easemlent belonging to- the plaintiff. If such -adverse -holding -should run for the statutory period, the easement would be defeated1. We -db not say that the mere use or -cultivation of land within, the right of way acquired by -a railroad 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 land within the right of way, under -a claim of exclusive right to use and occupation, and -a refusal to remove the enclosure after -the 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.”
There mlust be more than a mere obstruction -before it can ri-pen into a right. The assertion must be of -an exclusive occupancy, in order that the adverse holding' for the statutory period may have the effect of destroying the easement. As- the charge stated a correct proposition of law, it can not be said -that it was a charge upon- the facts.
5
Seventh Exception:
The charge of the presiding judge merely eliminated from the consideration- of the jury the question 'whether the defendant was a purchaser for valuable consideration without notice, and the appellant has failed' to show that the 'charge was prejudicial to his rights, as he did not interpose such defense.
6
Eighth Exception:
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The opinion of the 'Court was delivered by
Mr. Justice Gary.
The facts1 are thus stated in the decree of his Honor, the Circuit Judge:
“This is .an1 action om the equity side of the court, brought to require defendant to remove a fence off thie right of way of plaintiff, which is a corporation1 operating a railroad between the cities of Columbia and Greenville, in the State of South Carolina, and known formerly as the Columbia and Greenville Railroad. Counsel agreed upon the following issues, which were submitted oot of Chancery, to1 a jury, viz.:
1. “Is the fence erected by defendant, on or about March 8, 1904, on the right of way of plaintiff ?
£. “Hias plaintiff 'ever 'been in possession of said land as right of way ?
31. “Has plaintiff 'ever abandoned the right of way upon which the fence is erected?
4. “Has the defendant, his -ancestors or grantors, been in adverse possession of the land in dispute, for a .period of ten (101) years, before the commencement of this action, under claim! of title and right of the premises ?
5. “Has the defendant, his -ancestors or grantors, been in adverse possession of the land in dispute, under claim of title and right of the premises, for a period of forty(40) years-, before the commencement of this action ?
“The jury answered' ‘yes’ to the first two questions and ‘no’ to questions 3, 4 and 5. In other words, they find that plaintiff is in possession of the land ¡as a right of way upon which the fence is erected, and has never abandoned the sarnie; that the defendant, his ancestors, grantors and predecessors, have not 'been in adverse possession of the land in dispute for a period of ten years, nor for a period if forty years, -before the commencement of this- action under -claim of right and title to' the premises. It followed that plaintiff is -entitled to the relief demanded in the -complaint.”
The defendant appealed upon exceptions which will be set out in the report of the case. They will be considered in regular order.
1
First and Second Exceptions:
In -the first place, if the testimony could be regarded as material, its tendency was to benefit
the defendant,
by showing, that the use of the property had not been necessary to the plaintiff’s. enjoyment of its rights, untill the action was commenced, and for this reason it 'had- been theretofore abandoned. The defendant can not, therefore, complain that the testimony was prejudicial to its rights.
2
In the second place, the Court of Common Pleas, in the exercise of its chancery powers, can award compensatory damages.
Bird
v.
R. R.,
8 Rich. Eq., 46;
McClellan
v.
Taylor,
54 S. C., 430, 32 S. E., 527;
Railroad Co.
v.
Victor Mfg. Co., ante,
266. Such damages may be recovered after the commencement of the action when the injury is continuous in its nature.
Puckett
v.
Smith,
5 Strob., 26;
Bratton
v.
Catawba P. Co.,
80 S. C., 260. And it is not necessary to allege those damages, that are the direct result of, and incidental to, the wrongful act.
Levy v. Legg,
23 S. C., 282;
Norris v. Clinkscales,
47 S. C., 488, 25 S. E., 797;
Welborn
v.
Dixon,
70 S. C., 108, 49 S. E, 232.
The testimony was competent upon the question, whether the plaintiff suffered damages after the commencement of the action.
The fact that the plaintiff did not insist upon the recovery of damages, did not render testimony prejudicial to the rights of the defendant incompetent which otherwise would have 'been.' competent.
Third and Fourth Exceptions:
His Honor, the Circuit Judge, refused to 'charge the requests on the ground' that they were inapplicable. In so far, however, as they were applicable, the appellant received the benefit of them in other portions of the charge.
3
Fifth Exception:
The presumlption was that the plaintiff, or its predecessors, took one hundred feet on each side from the center of the track.
Harman
v.
R. R.,
72 C. C., 228, 51 S. E., 689;
Railroad v. Victor Mfg. Co., ante,
266.
4
Sixth Exception:
The rights of the owner of the fee and the railroad company are thus dearly stated by Mr. Justice Jones in the case of
Railway
v.
Beaudrot,
63 S. C., 266, 269, 41 S. E., 299: “Having a mere easement in the .land, 'plaintiff’s right of possession is not exclusive, except in so far as the land covered by the right of way is actually needed for the purpose of constructing, operating or maintaining the railroad. 'Subordinate to this right, acquired under the State's eminent domain, the owner of -the fee has the right to the use and possession of-the land covered by the right of way, for any purpose not incompatible with the purposes for which the easement was granted or acquired. * * * As already stated, it appears in the ‘Case’ that the defendant had erected within the alleged right of way a substantial- fence, enclosing what -defendant claimed, exclusive of any right therein- by plaintiff. Stodh. an assertion of right to exclusive occupancy of the l-and is not compatible with the right of easemlent belonging to- the plaintiff. If such -adverse -holding -should run for the statutory period, the easement would be defeated1. We -db not say that the mere use or -cultivation of land within, the right of way acquired by -a railroad 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 land within the right of way, under -a claim of exclusive right to use and occupation, and -a refusal to remove the enclosure after -the 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.”
There mlust be more than a mere obstruction -before it can ri-pen into a right. The assertion must be of -an exclusive occupancy, in order that the adverse holding' for the statutory period may have the effect of destroying the easement. As- the charge stated a correct proposition of law, it can not be said -that it was a charge upon- the facts.
5
Seventh Exception:
The charge of the presiding judge merely eliminated from the consideration- of the jury the question 'whether the defendant was a purchaser for valuable consideration without notice, and the appellant has failed' to show that the 'charge was prejudicial to his rights, as he did not interpose such defense.
6
Eighth Exception:
Even conceding that the charge w-as erroneous, it Was not prejudicial to the appellant, as he did not rely upon mere nonuse for the statutory period.
If the appelant desired the presiding judge to charge “that non-use is a fact or circumstance which should1 be taken into consideration by the jury like any other fact or circumstance in determining the question of abandonment',” he should have presented requests to 'that effect.
7
Ninth Exception:
Not only is the lawl correctly stated in said charge, but even' if there was error, it was not prejudicial-
to
the rights of the appellant.
8
Tenth Exception:
The appellant has failed to show that the charge may 'have had an undue influence upon the verdict of the jury.
Eleventh, Twelfth, Thirteenth and Fourteenth Exceptions:
These merely involve questions of fact that were determined -by- the verdict of the jury.
It is the judgment of this Court, that the judgment of the Circuit Court -be affirmed.