Atlantic & C. Air Line Ry. Co. v. Victor Mfg. Co.

• Decision Date: 03 March 1908
• Citation: 60 S.E. 675,79 S.C. 266
• Parties: ATLANTIC & C. AIR LINE RY. CO. et al. v. VICTOR MFG. CO.
• Court: South Carolina Supreme Court

60 S.E. 675

79 S.C. 266

ATLANTIC & C. AIR LINE RY. CO. et al. v. VICTOR MFG. CO.

Supreme Court of South Carolina

March 3, 1908

Appeal from Common Pleas Circuit Court of Spartanburg County Charles G. Dantzler, Judge.

Action by the Atlantic & Charlotte Air Line Railway Company against the Victor Manufacturing Company. From an order referring certain issues to a master in chancery, defendant appeals. Affirmed.

Haynsworth & Patterson and Simpson & Bomar, for appellant.

Sanders & De Pass and Nicholls & Jones, for respondents.

GARY A. J.

This appeal is from an order referring certain issues to the master. The complaint alleges that plaintiffs, under the powers conferred by their charters, acquired a right of way through the lands of Bidsey McKittrick, near the corporate limits of the town of Greer, consisting of a strip of land extending 100 feet on each side of the railway track "that on or about the _____ day of _____ 1904, the defendant, against the protest of the plaintiffs herein, and without their knowledge or consent, entered upon the strip of land hereinbefore described, upon which Bidsey McKittrick formerly lived, and partly within the limits of the town of Greer, a station upon the railroad track of the plaintiffs herein, and commenced to build and construct, and continues or threatens to continue to construct, and to occupy and use certain dwelling houses, within the limits of the said strip of land hereinbefore described, intending the same to be permanent structures thereon, claiming the right to occupy enter upon, and use said lands for the purpose of building constructing, and occupying said dwelling houses; that the plaintiffs have given notice to the defendant forbidding him to enter upon the said strip of land to build and construct said dwelling houses thereon, but that the defendant has treated the notice with defiance, and claims that he is entitled to enter upon said land, and to build said houses thereon, and to occupy and use the same as his own; that the said dwelling houses are permanent structures, and their continuance upon the said strip of land is a continual trespass upon the rights and property of the plaintiffs herein, who are in possession of the same." The prayer of the complaint was for an injunction, and $100 damages for the alleged trespass. The defendant set up the following defenses: First. That the plaintiffs are estopped by reason of their acquiescence in the claim of Bidsey McKittrick and her grantees to 50 feet of the land now claimed by the plaintiffs as a right of way. Second. Adverse possession in the defendant and those under whom it claims for more than 20 years. Third. That the defendant is a purchaser for value without notice. That, believing it was the owner in fee, it constructed dwelling houses on said lot at considerable expense, which enhanced the value of the property to the extent of $3,000 and sets up the same as betterments. Fourth. That the deed executed by Bidsey McKittrick to the railway company in 1871 purporting to grant a right of way extending 100 feet on each side of the track was only intended to give 50 feet on each side. That the deed is void for fraud, and should be reformed so as to carry out the intention of the parties. His honor, the presiding judge, granted an...