Tutt v. Port Royal & Augusta Railway Co.

5 S.E. 831, 28 S.C. 388, 1888 S.C. LEXIS 59

• Court: Supreme Court of South Carolina
• Decided: April 3, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McGowan.

This action was brought to recover a strip of land, on which the railroad of the defendant corporation has been constructed and is now operated, and $2,500 damages. The plaintiff, Tutt, as trustee, under what is known as the Miller deed, printed in the Brief, has heretofore brought two successive actions to recover these same premises. In the first case, commenced in June, 1879, long after the railroad “was completed” through the lands covered by the trust deed, Tutt, the trustee, had a verdict; but this court set it aside on the ground that Dr. Horatio R. Cook, the husband of the cestui que trust, being in possession of the land claiming it as his own, and really having almost absolute power of control under the trust deed, had executed to the defendant corporation a license to construct their road over the land, which could not be disturbed, at least during his life or until his right of possession was revoked or forfeited. See Tutt v. Railroad Company, 16 S. C., 365.

The second action of the trustee, Tutt, was founded on the theory that the right of possession by Dr. Cook under the trust deed had been forfeited by abuse of his possession and committing waste, in giving to the defendant company the right of way, and to grade and turn up the soil of the trust lands in his possession ; but this court sustained the non-suit granted by the Circuit Court, upon the ground, that a trustee under a trust deed, which gives to one for life the possession and use of a tract of land, cannot during his life recover from a railroad company a strip of land granted to it by the life tenant for a road-bed until his right of possession has been adjudged forfeited, which can only be done in a case to which he is a party. See Tutt v. Railroad Company, 20 S. C., 111.

In 1885, Dr. Cook, the husband of the cestui que trust, died, and this, the third action, is brought for the recovery of the aforesaid strip of land and damages, some sixteen years after the railroad was completed and operated upon the aforesaid right of way. The complaint alleges that the plaintiff, Tutt, as trustee, is the legal owner in fee of the premises, and exhibits the trust deed as part of the complaint; that on or about 1885, Horatio R. Cook died, and the said Helena H. M. Cook is now unmarried; that on April 23, 1870, the railroad company, claiming to act under the authority of a pretended deed of Dr. Cook, which is exhibited and made a part of the complaint, entered upon the said tract of land and took possession of the strip of land described; that the defendant corporation, claiming as purchasers of an alleged interest of the old “Port Royal Railroad Company” in said strip of land, are now wrongfully in possession thereof and withhold the same from the plaintiffs, &c., &c. (Let the complaint in full be printed in the report of- the case.)

The railroad company demurred to the complaint upon the ground that it “did not state facts sufficient to constitute a cause of action,” and upon argument, the. Circuit Judge held that under our law as to the manner in which a railroad company may acquire the right of way, the defendant company was not unlawfully in possession of the strip of land sued for, and that an action of ejectment would not lie against the railroad company to recover it; and dismissed the complaint. From this order, the plaintiffs appeal to this court upon the following grounds:

1. Because it is submitted that a demurrer admits the allegations of the complaint, and the allegation that defendants are “wrongfully in possession,” and that Helena H. M. Cook “is entitled to the immediate possession of said premises” are allegations of fact, and his honor, the presiding judge, erred in holding that such allegations are conclusions of law.

2. Because his honor erred in holding that it had been decided in this cause of action, that the fee in the land in dispute was in the plaintiff’, C. G. Tutt, trustee, for it is submitted that such question has never been decided by the judgment of any court, and there is no judgment upon said question, and his honor also erred in finding such as a matter of fact, when no such fact is mentioned in the complaint; and in deciding upon a demurrer it is submitted that the court is confined to the pleadings and cannot go outside to ascertain a fact.

3. Because from the pleadings and deeds herein referred to, it appears that H. R. Cook could only grant the right of way to the company for and during his life-time, and that upon his death the defendant had no right to the use or posession of the land in dispute.

4. Because the defendant company having entered upon and held possession under the deed of H. R. Cook, (and not under the statute,) for it is so charged in the complaint, it was error in his honor to hold that the company-held under the statute. It was also error to hold that the railroad company could only acquire its right of way under the act of 1868.

6. Because his honor erred in holding that H. R. Cook had the power to grant the license for a right of way over the land in dispute for a longer period than his .life. Whereas it is plain that said Cook had no authority to give such license for a longer term than his life.

7. Because his honor erred in holding that the defendants could not be held liable for special damages to the land unless such damages were set forth “in a separate cause of action for damages.” Whereas it is submitted that the special damages are sufficiently set forth, and under the present practice and the law it was not necessary to so state the damages.

8. Because upon the pleadings it is submitted that the complaint does state facts sufficient. to constitute a cause of action; and it was error in his honor in not so deciding, &c.

A demurrer upon the ground that the complaint does not state facts sufficient to constitute a cause of action admits all the relevant facts well pleaded, but not conclusions of law. Wait Ann. Code, 234. For instance, here it does admit the execution of the Miller deed of trust, and the paper signed by Dr. Cook, conveying the right of way to the defendant company, which are exhibited as parts of the complaint; but it does not admit the construction and effect claimed for these papers, which is a matter for the court, a conclusion of law. We think that the allegations that the defendant company “is wrongfully in possession,” and that the plaintiff (H. H. M. Cook) “is entitled to the immediate possession of the said premises,” are conclusions of law, indeed, the very points in contest. The statement that a fact is “unlawful” is not the statement of a fact, but'a conclusion of law. An act which may or -may not be right and lawful, according to the circumstances under which it may be done, is not properly averred to be unjust and unlawful by merely calling it so. The terms “fact” and “truth” are not in pleading synonymous. Pool v. Railroad Company, 23 S. C., 289; Ensign v. Sherman, 14 How. Pr., 439; Lawrence v. Wright, 2 Duer, 673; 2 Wait Prac., 307.

It is contended that the defendant corporation does not hold the possession and use of its road-bed under its charter, and the general railroad law of the State, but that they received it under Cook; and upon the principle that the rights of the donee can never rise higher than those of the donor, that their right of way necessarily ended with the death of Cook. We think, as matter of law, that the company held their right of way by force of their charter granted by the State, and whether it was fixed on these lands in a-legal and regular manner, must be determined by the general law upon the subject. This appears from the paper itself, signed by Dr. Cook, which recites the act of the legisla-, ture granting the charter “whereby certain powers were conferred to take and hold in fee simple lands that they may find necessary for the site on and along which to locate and establish the said railroad,” &c.

It is true, that the paper executed by Cook in 1870 was in the form of a regular conveyance of the fee, but it was without seal, and as a deed could not take effect. But it would not have altered the case, if there had been a seal attached. The original charter of the company authorized the right of way to be acquired in that manner. But after this paper was signed in conformity to the charter (1871), it was held by this court in reference to this identical charter, that in condemning lands under it the company must proceed in the mode prescribed by the act of 1868. McCrea v. Port Royal Railroad Company, 3 S. C., 382; and see Sams v. Railroad Company, 16 Id., 487. In the case of McCrea the court say, “The right of a corporation is only in the nature of a qualified grant, to be enjoyed on due compensation being rendered, and the mode through which the land might be taken by the company remained subject to the will and pleasure of the State. It was, at most, but a change in the remedy, and did not at all conflict with the material right accorded by the charter, Avhieh was the poAYer of subjecting private property to the use of the road,” &c.

So that it is perfectly certain that the question between these parties does not relate to the quantum of interest conveyed or not conveyed, for the right of way was already given by the State; but concerns only the mode through which the right of way was taken, and this must be determined by the provisions contained in the General Statutes (section 1550 to section 1501 inclusive), under the heading of “manner of acquiring the right of way.” Taking these provisions as our guide, it is manifest that the question is not as to who has the fee simple title. The defendant corporation does not claim to be the absolute owner of the strip of land sued for, or any right therein, whieh is inconsistent with the fee being and remaining in Tutt, the trustee. It only claims an easement granted by the State, whieh, in the exercise of the right of eminent domain, gave the company the power to appropriate as a road-bed the use of so much of these lands as was necessary for that purpose, upon only one fundamental condition, viz., that the value of the land so appropriated should be 'paid to the owner, if required, and for want of agreement or where parties do not negotiate, the value to be fixed by commissioners. In no case, hoAvever, can this right be taken from the company, subject always to the constitutional right of the land owner to have compensation, if demanded at the proper time and in the proper manner. It seems to us, therefore, that we cannot consider this right of the company merely in the light of that of an individual, acquiring and holding land under claim of title from a grantor; but the question is whether a right of way given by the State sixteen years ago and used ever since, can notv be recovered, and the track of the road broken, by one now holding lands through which it runs ?

Section 1550 of the General Statutes provides that “AA'henever any person or corporation shall be authorized by charter to construct a railway * * * in this State, such person or corporation, before entering upon atiy lands for the purpose of construction, shall give to the owner thereof (if he or she be sui juris) notice in writing, that the right of way over said lands is required for said purpose. * * * If the owner shall not within the period of thirty days signify in writing his refusal or consent, it shall be presumed that such consent is given; and such corporation may thereupon enter upon said lands : provided that the owner of said lands may be entitled to move for an assessment of compensation,” &c. It will be observed that the word “owner” is used. Dr. Cook was found in possession of these premises and claiming them as his own. He gave his “consent in writing,” and the railroad was constructed through the land. Was that a compliance with the law ? It certainly was if Cook was the “owner” in the sense of the statute. It is not alleged that any one else, at that time, claimed to be the “owner,” and it has been twice decided, that he had sufficient control over the land to make his license good during his life even against the trustee.

This court has lately had occasion to give construction to the word “owner” in this act. It has been held that under this provision the consent of executors as to lands of the heirs or devisees was sufficient, and bound them as to the location and construction of a chartered railroad. Tompkins v. Railroad Company, 21 S. C., 420. In delivering the judgment, Mr. Justice Melver thus expressed the view of- this court: “The statute, in dealing with this subject, uses the term ‘owner’ of the land, and it is earnestly contended that the executors are not the ‘owners’ of the land; but that, at most, they simply had a power to sell for certain purposes, while the legal title remained in the plaintiffs, who were, and are, the owners of the land. It is quite obvious that the statute does not use the term ‘owner’ in the sense of the holder of the legal title, hut rather in the sense of one who has the control of the land. If a minor or other person under disability holds the legal title, the statute provides that the notices and other papers necessary in the proceedings for condemnation shall be served, not upon such minor or other person under such disability, but upon-his guardian, trustee, or committee — that is, upon the person who exercises, control over the land, even though he does not hold the legal title, and is not, in the strict sense of the term, the ‘owner’ of the land,” &c.

Dr. Cook had as much control over the premises in question as did the executors of Tompkins. It is true, he held his possession under the Miller deed, and that the trustee cannot be said, in the strict sense of the phrase, to take under him. But considering that the question is not one of title, but rather as to the consent of the ostensible “owner,” and also considering the striking fact that our law makes no provision for a second or third condemnation to correspond with possible changes of title to the land through which the right of way passes, we feel constrained to hold, that for the purpose of giving “consent” to the right of way, Dr. Cook was the “owner” of the land, and his license, executed, as it has been, by construction of the road and long use, was not revoked by his death, or limited in its effect to his life-time.

But if we take the other view, the result will be the same. If Dr. Cook was not the “owner” in the sense of the statute, w'ho was ? Was it the trustee, Tutt, who had the legal title ? If so, when the company had graded the road through the land in 1872 he should have required compensation then, or within a reasonable time thereafter. Section 1558, General Statutes, provides that “if in any case the owner of any lands shall permit the person or corporation, requiring the right of way over the same, to enter upon the construction of the highway, without previous compensation, the said owner shall have the right, after the highway shall have been constructed, to demand compensation and to petition for an assessment of the same in the manner hereinbefore directed. Provided such petition shall be filed within twelve months after the highway shall have been completed through his or her lands.” It does not appear that he (the trustee) had notice, but that may be inferred (see Verdier v. Railroad Company, 15 S. C., 476), and it is expressly alleged in the complaint that the defendant corporation, about April, 1870, took possession of the strip of land above described, and did, soon thereafter, dig up the soil, &c.; and it was seven years . before any action was taken, and nearly fourteen years before the present proceedings were instituted. It seems to us that the statute does not contemplate a divided “ownership,” or one “owner” for the present,-and another for the future, making two successive condemnations necessary. And in the view that the trustee, Tutt, was, and is, the legal “owner” in the sense of the statute, he has lost his right to recover the said strip of land by lapse of time and the statute of limitations. See Waring v. C. & D. R. R. Co., 16 S. C, 416.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.