Appeal
from Common Pleas Circuit Court of Barnwell County; Ernest
Gary, Judge.
POPE
C.J.
This is
an action by the plaintiffs, wherein an injunction is sought
to prevent any interference by the town of Fairfax, of
Barnwell county, and state of South Carolina, by what is
known as Sumter avenue of said town of Fairfax so far as the
60 feet in said avenue is set up, of the grant of land on the
210 feet in width and 2,100 feet in depth, from W. J. and J.
F. Sanders unto the Savannah Construction Company for the
South Bound Railroad; said grant being set up in the
agreement entered into by said W. J. and J. F. Sanders on the
30th day of December, 1890, and recorded in the office of
recorder of mesne conveyances for Barnwell county in Book 6B,
p. 346. The plaintiffs, the Seaboard Air Line Railway
Company, obtained a preliminary injunction from his honor,
Ernest Gary, on the 25th day of June, 1906, by which the
defendants were required to show cause on the 6th day of July, 1906, why the injunction should not be made
permanent. Cause was shown by said defendants. A hearing took
place before his honor, Judge R. W. Memminger, upon maps and
deeds and testimony by both parties, and on the 21st day
of December, 1907, Judge Memminger filed his decree, in which
he held that the plaintiffs' rights were fully protected,
and that the defendants must yield their possession of the
said 60 feet of said Sumter avenue over to the plaintiffs,
ceasing all manner of interference with the plaintiffs'
possession of said 60 feet of land and returning the $20 in
money exacted of their agent. From this decree of his honor,
Judge Memminger, the defendants have appealed to this court
upon six grounds. It becomes necessary therefore that we
should examine these grounds in their order:
1.
"Because his honor erred in holding that the plat relied
upon by the defendants was not made by the plaintiff railway
company, whereas, his honor should have held that the plat
relied upon by the defendants-appellants was made by the
Savannah Construction Company and by the grantors of the
plaintiff-respondent, and with their full knowledge and
acquaintance of the said plat; the same being of record, and
being a part and parcel of respondent's deed; and should
have held that the respondents fully concurred in the adverse
use of the streets laid out on said plat."
It is
proper that we should reproduce at this juncture the
complaint referred to, which is as follows:
Complaint.
"The
complaint of the above-named plaintiff respectfully shows
unto the court:
"(1)
That it is a corporation duly created and organized under
the laws of the states of Virginia and North Carolina,
under the corporate name and style of Seaboard Air Line
Railway Company, and operates a line of railway through the
state of South Carolina and the county of Barnwell on its
line of road towards Savannah in the state of Georgia, in
doing which it passes through the town of Fairfax in said
county, and by its charter is authorized to
hold and enjoy property, contract and be contracted with,
sue and be sued as a natural person would be under the law.
"(2)
That the town of Fairfax is a municipal incorporation
existing under the laws of the state, with all the rights,
powers and privileges granted by and subject to all the
limitations and provisions contained in an act entitled
'An act to provide for and regulate the incorporation
of towns of less than one thousand inhabitants in this
state,' approved December 23, A. D. 1885 (Laws 1885, p.
174).
"(3)
That the South Bound Railroad Company is a corporation duly
created and organized under the laws of the state of South
Carolina and Georgia, and was the owner of a railroad
constructed and operated between Camden, in the state of
South Carolina, which is its northern terminus, and
extending in a southerly direction to the city of Savannah,
in the state of Georgia, in doing which it passed through
the city of Columbia and the towns of Cayce, Denmark, and
Fairfax in South Carolina.
"(4)
The Savannah Construction Company is a corporation duly
created and organized under the state of Georgia, and by
its charter is authorized to hold and enjoy property, real
and personal, sue and be sued, contract and be contracted
with as are natural persons.
"(5)
That on the 30th day of December, A. D. 1890, W. J. and J.
F. Sanders, citizens of the county of Barnwell and
landowners in the vicinity of Fairfax, then known by the
name Campbellton, entered into a contract of sale with the
said Savannah Construction Company, and by their mutual
agreement, under their hands and seals, covenanted to sell
and convey, and did convey, to the said Savannah
Construction Company a tract of land 212 acres in and about
said town of Fairfax, therein called Campbellton, in said
deed particularly described, upon the terms and conditions
therein set forth, and, among other things, it is
particularly provided that said tract of land shall be
hereafter laid out by the said Savanah Construction Company
or its engineer into a town, with streets,
lanes, lots, and blocks for building purposes in such
shapes, sizes, and dimensions as the said Savannah
Construction Company or its engineer may think best suited
for a town or city, and with parks and squares, if said
company shall think best; a right of way 100 feet wide
through said tract of land for said South Bound Railroad
Company, and also a tract of land 2,100 feet in length and
210 feet in width, beginning at the crossing of the Port
Royal & Augusta Railroad by the South Bound Railroad, and
running parallel to and on the west side of the South Bound
Railroad for the use of the said South Bound Railroad
Company, to be first reserved; and after said tract of land
is so laid off as a town into blocks and lots with streets
and lanes and such parks and squares, if any, as may be
thought best, said right of way 100 feet wide and said
strip and tract of land 210 feet wide by 2,100 feet long
being first reserved for the uses and purposes of said
South Bound Railroad Company, every alternate lot or block
shall be and become the property in fee simple of the said
Savannah Construction Company, and the remaining alternate
lots or blocks shall be and become the property in fee
simple of the said W. J. and J. F. Sanders; and after said
allotment, which is to be done in such way as to be fair
and equitable to both parties, the said Savannah
Construction Company and the said Sanders shall sign such
an instrument or deed as will clearly show the lots and
blocks belonging to said Savannah Construction Company and
those belonging to the said W. J. and J. F. Sanders. All of
which will more particularly and at large appear by
reference to said agreement, a copy of which is hereto
attached as a part of this complaint, and is recorded in
Book 6B, p. 346, office of the clerk of the court for said
county.
"(6)
That in pursuance of and compliance
with the hereinbefore mentioned contract of sale, on the
14th day of November, A. D. 1891, the said William J.
Sanders and William J. Sanders and Elliott L.
Sanders, as executors of the will of James F. Sanders,
deceased, and by virtue a power therein contained, parties
of the first part, and the said Savannah Construction
Company, party of the second part, executed their certain
indenture
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