Lorick & Lowrance, Inc. v. Southern Ry. Co.

• Citation: 68 S.E. 931,87 S.C. 71
• Parties: LORICK & LOWRANCE, Inc., v. SOUTHERN RY. CO.
• Decision Date: 26 September 1910
• Court: United States State Supreme Court of South Carolina

68 S.E. 931

87 S.C. 71

LORICK & LOWRANCE, Inc., v. SOUTHERN RY. CO.

Supreme Court of South Carolina

September 26, 1910

Appeal from Common Pleas Circuit Court of Richland County; R. W Memminger, Judge.

Action by Lorick & Lowrance, Inc., against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Lyles & Lyles, for appellant. Thomas & Lumpkin, for respondent.

WOODS J.

The plaintiff being the owner of a square of land in the city of Columbia containing four acres, bounded by Rice, Bull Marion, and Tobacco streets, brought this action to enjoin the Southern Railway Company from using an old right of way across the land on the ground that the right to the easement had been abandoned and lost by nonuser. The issue submitted to the jury was "whether at the time of the commencement of this action the Southern Railway Company was entitled to a right of way over the four acres of land described in the complaint along the line of the old Charlotte & South Carolina Railway track, and, if so, of what width." The evidence showed beyond dispute that the Charlotte & South Carolina Railway Company owned a right of way over the land 130 feet wide acquired in 1850, and that the defendant is successor to the right and title of the Charlotte & South Carolina Railway Company. There was evidence tending to show that, owing to change in track arrangement, the right of way over this lot of land had not been used for 20 years; but there was no evidence of adverse use by any owner of the servient estate of land embraced in the right of way for the statutory period of 10 years. The verdict on the issue submitted was in favor of the defendant. The circuit judge by his decree approved this finding, and, in refusing the injunction and dismissing the complaint, adjudged the Southern Railway Company to be entitled to a right of way over the land 120 feet in width.

The exceptions assign error in the instructions to the jury on the issue whether the right of way had been abandoned by the railroad company. The charge, in substance, was that abandonment of the right of way could not be inferred from mere nonuser for 20 years, unless the circumstances indicated an intention not to make any further use of the easement. This instruction was in accordance with the law thus laid down in Polson v. Ingram, 22 S.C. 541: "It will be observed that the question of abandonment is a very different question...