Atl. Coast Line R. Co v. Sear-son

• Decision Date: 09 November 1926
• Docket Number: (No. 12099.)
• Citation: 135 S.E. 567
• Parties: ATLANTIC COAST LINE R. CO. v. SEAR-SON.
• Court: South Carolina Supreme Court

135 S.E. 567

ATLANTIC COAST LINE R. CO.

v.SEAR-SON.

(No. 12099.)

Supreme Court of South Carolina.

Nov. 9, 1926.

Appeal from Common Pleas Circuit Court of Colleton County; J. K. Henry, Judge.

Action by the Atlantic Coast Line Railroad Company against A. Z. Searson. Judg-ment for plaintiff, and defendant appeals. Affirmed.

The pleadings and exceptions directed to be reported are as follows:

Complaint.

The plaintiff above named, complaining of the above-named defendant, alleges:

(1) That the plaintiff is a corporation chartered and organized under the laws of the state of Virginia.

(2) That the complainant, Atlantic Coast Line Railroad Company, by virtue of the charters granted by the state of South Carolina to its predecessors in title, conveyances, consolidation agreements, and mergers, is the owner of the railroad and the right of way upon which the same is constructed, hereinafter referred to and formerly known as the Charleston & Savannah Railroad, together with 100 feet on each side of the center of said road and said railroad adjoins the property of the defendant, Allen Sear-son, near the station of Ashepoo in the county of Colleton, S. C.

(3) That by Act of the Legislature of South Carolina passed December 20, 1853 (12 St. S. C. 271) the Charleston & Savannah Railroad Company was chartered for the construction and operation of a railroad from the city of Charleston, S. C, to the city of Savannah in the state of Georgia.

(4) That under authority of that act the said Charleston & Savannah Railroad Company constructed said railroad and same was completed and put in operation between Charleston, S. C, and Savannah, Ga., about the year 185—.

(5) At the time said railroad was constructed the predecessors in title of the defendant Allen Searson, as complainant is informed and believes, owned the tract of land hereinafter described, and said line of railroad was constructed, completed and put in operation through said tract of land in the year 185— or about that time, and said Charleston & Savannah Railroad Company had entered upon and begun the construction of said railroad through said tract of land prior to that time.

(6) That the said act incorporating the said Charleston & Savannah Railroad Company, among other things, provided:

"XI. That in the absence of any written contract between the said company and the owner or owners of land through which the said railroad may be constructed, in relation to said land, it shall be presumed that the land upon which the railroad may be constructed, together with one hundred feet on each side of the center of said road, has been granted to the said company by the owner or owners thereof; and the said company shall have good right and title to the same (and shall have, hold and enjoy the same) unto them and their successors so long as the same may be used only for the purposes of the said road and no longer, unless the person or persons to whom any right or title to such lands, tenements or hereditaments descend or come, shall prosecute the same within two years next after the construction of such part or portion of the said road as may be constructed upon the lands of the person or persons so having or acquiring such right to the title aforesaid; and if any person or persons to whom any right or title to such lands, tenements or hereditaments belong, or shall hereinafter de scend or come, do not prosecute the same within two years next after the construction of the parts of the said road upon the lands of the person or persons so having or acquiring such right or title as aforesaid, then he or they and all claiming under him or them, shall be forever barred to recover the same: Provided, that nothing herein contained shall affect the rights of feme coverts, infants, or persons beyond the seas, until two years after the removal of their respective disabilities."

(7) That on or about the 1st day of June, 1919, and at various times between that date and the date of the filing of this bill of complaint the defendant, Allen Searson, unlawfully and without authority and under claim of hostile and exclusive ownership and in denial of the complainant's right and title to its right of way, entered upon the land and right of way of complainant and inclosed under fence a part of said right of way; the same being a strip of land in the county of Colleton, S. C, adjacent to the land of defendant, containing 5.35 acres and measuring on the northern side 3, 182.8 feet, on the eastern side 91.4 feet, on the southern side 3, 316.8 feet, and on the western side 77.4 feet, which said tract of land is within 100 feet of the center of said railroad and was, by the said charter of said Charleston & Savannah Railroad Company, granted to said company and its successors, and is now the property of complainant herein.

(8) That there was and is no written contract between the owner or owners of said above-described tract of land and the said Charleston & Savannah Railroad Company, which constructed said railroad through and over said tract of land, and under the said charter of said company the said land (being within 100 feet of the center of said railroad) is presumed to have been granted to said company and its successors by the owner thereof, and the said company and its successors have good right and title thereto to have and to hold and enjoy the same for the purposes of said railroad; that neither did the owner nor any person or persons having a right to title to said land, by descent or otherwise, present or prosecute a claim to the same within two years after the construction of said railroad upon said land and by said charter to said owner and all persons claiming under him are forever barred to recover the same, and under and by virtue of said charter complainant is the owner, as the successor in title to said Charleston & Savannah Railroad Company, of the said tract of land, and has good right and title thereto for the purposes of its said railroad.

(9) That all the rights of way, property, rights, and franchises of the said Charleston & Savannah Railroad Company passed to and became vested in the Savannah & Charleston Railroad Company in 1S07. and from the Savannah & Charleston Railroad Company passed to and became vested in the Charleston & Savannah Railway Company in 1880 and from the Charleston & Savannnah Railway Company passed to and became vested in the Savannah, Florida & Western Railway Company in 1901, and from the Savannah, Florida & Western Railway Company passed to and became vested in your complainant. Atlantic Coast Line Railroad Company, April 10, 1902, and your complainant is now the successor to and the owner of the said railroad and of all the property, rights of ways, rights, and franchises of said Charleston & Savannah Railroad Company as has been judicially decided by the United States Circuit Court of Appeal, Fourth Circuit, in the cases of Lee v. Atlantic Coast Line Railroad Co., 150 F. 775, and Atlantic Coast Line Railroad Co. v. Dunning, 166 F. 850, 04 C. C A. 128, and as such successor your complainant is now the owner of the said tract of land hereinbefore described.

(10) Ever since the construction of said railroad by the said old Charleston & Savannah Railroad Company and during the periods of their respective ownerships by it and its successors as above alleged, the said companies have been in exclusive and peaceful possession and control of the said railroad, property, rights, rights of way, and franchises, including therein said tract of land as part of said right of way, and have operated said railroad, and ever since the acquisition of said railroad, property, rights of way, rights, and franchises by your complainant, Atlantic Coast Line Railroad Company (including therein said tract of land as part of said right of way), it has been likewise in exclusive and peaceable possession of the same, operating said railroad so originally constructed by said old Charleston & Savannah Railroad Company, and complainant, as successor in title, is now in such possession and is now operating said railroad and is entitled to the peaceful possession of all of the rights of way of said old Charleston & Savannah Railroad Company including the tract of land hereinbefore described.

(11) That, under the laws of the state of South Carolina, one, who trespasses upon and enters upon the right of way of a railroad company under the assertion of a claim of hostile ownership and fences in and takes exclusive possession of a portion of said right of way in denial of the existence of such right of way and continues in adverse possession of the same for the period of 10 years, can acquire title to such portion of the right of way so trespassed upon taken possession of and defeat the ownership of the railroad company to such portion of its right of way; and complainant alleges that the tract of laud herein described is a part of the right of way of complainant and is necessary for the purposes of complainant's said railroad, and the same has been trespassed upon and taken possession of by the defendant, and fenced in under claim of exclusive and hostile ownership, and, if defendant is permitted to remain in such adverse possession thereof, his possession will in time ripen into title to same, and complainant will be deprived of a valuable portion of its right of way essential to it for the purposes of its railroad; that complainant's railroad in and through the states hereinbefore alleged forms a through line between southern and northern points, and the volume of its business has so greatly increased that it has found it necessary to double-track much of its railroad and will hereafter have to double-track more thereof, and the right of way granted to complainant through said tract of land by said charter is necessary for complainant to perform its functions as an interstate common carrier, and complainant alleges that its right of way is valued as an entirety, and the...