Atlanta & C.A. Ry. Co. v. Victor Mfg. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: HYDRICK, J.
• Citation: Atlanta & C.A. Ry. Co. v. Victor Mfg. Co., 76 S.E. 1091, 93 S.C. 397 (S.C. 1913)
• Decision Date: 15 January 1913
• Parties: ATLANTA & C. A. RY. CO. et al. v. VICTOR MFG. CO.

76 S.E. 1091

93 S.C. 397

ATLANTA & C. A. RY. CO. et al. v. VICTOR MFG. CO.

Supreme Court of South Carolina

January 15, 1913

Appeal from Common Pleas Circuit Court of Spartanburg County; John S. Wilson, Judge.

"To be officially reported."

Action by the Atlanta & Charlotte Airline Railway Company and the Southern Railway Company against the Victor Manufacturing Company. Decree for plaintiffs, and defendant appeals. Reversed.

Haynsworth & Haynsworth, of Greenville, for appellant. Sanders & De Pass and Nicholls & Jones, all of Spartanburg, for respondents.

HYDRICK J.

In 1871 Mrs. Bidsy McKittrick conveyed to the Atlanta & Richmond Airline Railway Company a right of way through a tract of land owned by her, describing it as "all the land contained within one hundred feet in width on each side of the track or roadway, measuring from the center." The plaintiffs acquired this title. In 1895 the defendant purchased a part of the McKittrick lands lying on the railroad. From time to time thereafter defendant erected fifteen cottages thereon, worth altogether about $8,000. They are located on a strip of land lying between lines 50 feet and 100 feet from the center of the railroad track. Three or four of them were built in the fall of 1895, eight or nine in 1899, and three in 1904. Plaintiffs made no objection, either while they were being built or afterwards, until the commencement of this action, although they were in plain view of the railroad, and it could have been easily seen that they were within 100 feet of the track.

The controversy between the parties arose in 1901, and grew out of the submission to the defendant by the plaintiffs of a draft of a written agreement for execution by defendant, relative to an industrial side track which had been built to serve defendant's cotton factory. To this proposed contract was attached a plat, on which the right of way of the railroad was shown as being 200 feet wide. For this reason, among others, defendant declined to sign the contract.

After some correspondence between the parties, in which their respective contentions as to the width of the right of way were stated, this action was commenced, in January, 1905, to enjoin defendant from further using the strip of land lying between lines 50 and 100 feet from the center of the railroad track, which is claimed by plaintiffs as part of their right of way, and to require the removal of the houses built thereon by defendant.

The defendant resisted the plaintiffs' action on the ground among others which need not be mentioned here, that, under the deed of Mrs. McKittrick, the right of way conveyed was only 100 feet wide; also on the ground that plaintiffs are estopped from claiming a right of way of greater width because the agent of the Atlanta & Richmond Airline Railway Company, from whom they claim, represented to Mrs. McKittrick that the deed which she signed conveyed a right of way only 100 feet wide, and thereby induced her to sign the deed, she being unable to read or write, and being ignorant of the contents or true meaning thereof; and also because Mrs. McKittrick and her said grantee, and its successors and assigns, including the plaintiffs, and her grantees of the lands lying along said railroad and their assigns, have, ever since the execution of said deed, mutually construed it as conveying a right of way only 100 feet wide, and they and all of them have ever since acted upon the belief that such was the true construction thereof.

Upon the testimony taken and reported by the master, the circuit court found against defendant on all points, and enjoined defendant from further trespassing upon the strip of land in dispute, and required the removal of the houses built thereon by defendant. From this decree, defendant appealed.

The defendant's construction of the deed cannot be sustained. While the language used is, at first reading, a little ambiguous, careful scrutiny and analysis of it shows the intention (which, by the rules of construction, we must gather from the language used, if possible) to convey a right of way 200 feet wide--"100 feet in width on each side of the track." The same language was held, in Spinning Co. v. Railway Co., 81 S.C. 482, 62 S.E. 787, to convey an easement 200 feet in width.

The testimony shows that Col. Gabe Cannon, of Spartanburg, acted as the agent of the railroad company in obtaining the rights of way through Spartanburg county, and that he procured the deed from Mrs. McKittrick, and was one of the witnesses to the execution thereof by her. It also shows that Col. Cannon was a man of more than ordinary intelligence and of unquestioned honesty and integrity of character--a fact personally known to the writer of this opinion, which is a pleasure to record. From this plaintiffs argue that it was highly improbable that he represented to Mrs. McKittrick, as alleged by the defendant, that her deed conveyed a right of way only 100 feet wide. Against this we have the testimony of the other witness to the deed, who, though now a very old man, whose memory of recent events he himself admits is unreliable, swore that he remembered the occasion distinctly, and that Col. Cannon did so advise Mrs. McKittrick. His testimony is corroborated by that of Mr. W. A. Pollard, a son of Mrs. McKittrick by a former marriage, who testified that he was present and heard what was said; and he himself (Mr. Pollard) acted upon it, and subsequently, and during the construction of the railroad, built a dwelling house for himself, on part of the same tract, within 100 feet of the railroad. The testimony shows that Mrs. McKittrick received no compensation for the grant of the right of way, and that the north line of a right of way 200 feet wide would have passed through her dwelling house, leaving two or three feet of it and all her front piazza and front yard in the right of way. It is almost improbable that she would have knowingly granted a right of way which might have resulted in serious inconvenience, not to say loss and damage, to her, without compensation.

The testimony further shows that the railroad engineers staked off only 100 feet, 50 feet on each side of the track, as the right of way through her land, and that during the construction of the road she confined the railroad people...