62 S.E. 787 (S.C. 1908), American Spinning Co. v. Southern Ry. Co.

• Citation: 62 S.E. 787, 81 S.C. 482
• Opinion Judge: WOODS, J.
• Party Name: AMERICAN SPINNING CO. v. SOUTHERN RY. CO.
• Attorney: Cothran, Dean & Cothran, for appellant. B. A. Morgan, for respondent.
• Case Date: November 16, 1908
• Court: Supreme Court of South Carolina

Page 787

62 S.E. 787 (S.C. 1908)

81 S.C. 482

AMERICAN SPINNING CO.

v.

SOUTHERN RY. CO.

Supreme Court of South Carolina

November 16, 1908

Appeal from Common Pleas Circuit Court of Greenville County; Chas. G. Dantzler, Judge.

Action by the American Spinning Company against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on opinion of trial judge, which is as follows:

Page 788

"The Hammett deed is as follows:

"'Atlanta & Richmond Air-Line R. R. Co. State of South Carolina, Greenville County. In consideration of the benefit and advantage to me accruing by the construction of the Atlanta and Richmond Air Line Railway, as well as the receipt of five dollars, to be paid and also in consideration that the said company shall and do make and keep in good order sufficient cattle guards on the said premises have this day bargained and sold, and do hereby transfer and convey unto the Atlanta and Richmond Air Line Railway Company, and its successors and assigns, all the land contained within 100 feet in width on each side of the track or roadway (measuring from the center) of any portion of the lot of land hereinafter described, through which said railway may be constructed, run and operated. The land hereby conveyed being cut off and a portion of a certain track lying and being in the county and state aforesaid near the city of Greenville and adjoining lands of Franklin Coxe, J. A. David, B. F. Perry, Wm. Bates and others. To have and to hold said track or parcel of land unto said Atlanta and Richmond Air Line Railway Company for railroad purposes forever and for no other in fee simple. Witness my hand and seal this 27th day of May A. D. 1871. Signed, sealed, and delivered in presence of H. P. Hammett. [Seal.] In presence of W. K. Easley, F. B. McBee.

"'The State of South Carolina, Greenville County. Personally appeared before me W. K. Easley and made oath that he saw H. P. Hammett sign, seal and deliver the within instrument for the uses and purposes therein mentioned and that F. B. McBee was with himself and witnessed the same. Sworn to before me this 26 day of October, 1871. Wm. Bayne, W. A. McDaniel, C. C. P. Magst. Ex Officio.'

"The defendant contends that it is entitled to a right of way over any portion of the land in question within 100 feet [81 S.C. 487] of the center of the main line whether such portion be...