Atlantic Coast Line R. Co. v. Baker

• Decision Date: 28 October 1927
• Docket Number: 12300.
• Citation: 141 S.E. 688,143 S.C. 445
• Parties: ATLANTIC COAST LINE R. CO. v. BAKER.
• Court: South Carolina Supreme Court

141 S.E. 688

143 S.C. 445

ATLANTIC COAST LINE R. CO. v. BAKER.

No. 12300.

Supreme Court of South Carolina

October 28, 1927

Rehearing Denied Nov. 26, 1927.

Appeal from Common Pleas Circuit Court of Chesterfield County; E. C Dennis, Judge.

Action by the Atlantic Coast Line Railroad Company against Rachel Baker. From a decree of dismissal, plaintiff appeals. Affirmed.

The master's report, ordered incorporated in the report of the case, is as follows:

The above-entitled case was referred to me by the order of his honor, Judge E. C. Dennis, dated the 25th day of October 1924. This order provides that all issues arising herein are referred to me, save and except the issue of estoppel, as that issue is to be tried by a jury.

Accordingly, I have held several references at which I was attended by Pegues & Murray, attorneys for plaintiff, and R. E. Hanna and George K. Laney, attorneys for defendant. The testimony is reported herewith.

The plaintiff brings the action to restrain a continuing trespass upon what is alleged to be its right of way; the complaint alleging, in substance, that the Cheraw & Coal Fields Railroad Company was chartered by act of the South Carolina Legislature in 1857, and that by the law of its creation said road was to have a right of way 200 feet wide, that is to say, 100 feet wide from the center of the tract on each side and that, in the absence of contract, there was to be a conclusive presumption of a grant two years after the construction thereof. It is also alleged that in 1868 the charter of said Cheraw & Coal Fields Railroad Company was amended, and the name changed to Cheraw & Salisbury Railroad Company; that subsequently all of the franchises, rights of way, and property of Cheraw & Salisbury Railroad were sold under foreclosure proceedings and bid in at such sale by Cheraw & Darlington Railroad Company, and that the latter company became the owner thereof; that subsequently Cheraw & Darlington Railroad Company was consolidated with and into Atlantic Coast Line Railroad Company, plaintiff herein; that the defendant, Rachel Baker, is trespassing upon the right of way of plaintiff (formerly Cheraw & Salisbury right of way) in a manner inconsistent with the use of said right of way for railroad purposes; that, although warned and forbidden to do so, the defendant has treated such warnings with defiance and is attempting to erect a building on the right of way for use as a garage and filling station; that such trespass is of a continuing nature; that defendant is utterly insolvent; and that the remedy at law is inadequate. The complaint, which is duly verified, prays for an injunction restraining the erection of such building.

The answer of the defendant, which is also duly verified, denies specifically the various incorporations alleged in the complaint, and also denies specifically the acts of the South Carolina and North Carolina Legislatures, and denies that she is trespassing on the property of plaintiff. The defendant also alleges that she, "her predecessors in interest and grantors have been, for more than ten years prior to the commencement of this action, in the open, notorious, adverse, and exclusive possession of the land upon which said trespass is alleged, and that the plaintiff has never been legally seized or possessed of the land upon which it is alleged the defendant is trespassing for ten years prior to the commencement of this action, and that neither the plaintiff, its predecessors, nor its grantors have been seized or possessed of this land for a period of 20 years prior to the commencement of this action; that the defendant, her predecessors and grantors, have been in the open, adverse, notorious, and exclusive possession of the same for a period of more than 20 years, etc.; that the defendant, her predecessors and grantors, have for a period of more than 20 years openly, notoriously, and adversely occupied the land in question on which there have been houses occupied by tenants of the owner and the owners; that plaintiff is estopped to deny the title of the defendant to the lot in question by reason of the admissions and acts of the plaintiff and its agents, which acts consisted in the location of the limits of the right of way of plaintiff at the outer boundary of the defendant's lot; that, if the plaintiff, or its grantors or its predecessors, have ever been seized of the property in question, which the defendant denies, by reason of laches and nonuse of the property in the face of adverse, open, notorious, and exclusive holding by the defendant, her predecessors and grantors, by reason of the terms of any title claimed by the plaintiff and its predecessors and the statutes applicable thereto, the plaintiff has no title or interest in the property in question.

Such, in the main, are the issues to be decided, except, of course, the issue of estoppel, with which I have nothing to do.

After hearing the testimony and the arguments of counsel, as I view the case, the first question to be decided is, Did the plaintiff, or its predecessor, acquire a right of way 100 feet wide from the center of the tract, at the point where this garage building of defendant is located?

Plaintiff served notice on defendant to produce the various acts of the South Carolina Legislature, chartering Cheraw & Coal Fields Railroad Company, Cheraw & Darlington Railroad Company, the act of the Legislature amending the Charter of Cheraw & Coal Fields Railroad Company, and changing the name to Cheraw & Salisbury Railroad Company. The defendant did not produce said acts. It was admitted that W. P. Blackwell, secretary of state of South Carolina, if present, would testify that, owing to a fire which occurred in the office of secretary of state some years ago, there are no original acts in that office prior to 1890.

This being so, I rule that the bound volumes of the statutes, purporting to be published by authority of the Legislature, and printed by the state printer, are the next highest evidence, and I admitted same.

Plaintiff then offered the act incorporating Cheraw & Coal Fields Railroad Company (Act 1857, 12 St. at Large, p. 645). There is no necessity of setting out this act in full. It simply incorporates the Cheraw & Coal Fields Railroad Company, and provides that its road be built "from the town of Cheraw to *** the North Carolina line," etc. Section 6 of said act provides: "That the company hereby incorporated, when organized, and the stockholders and the president and directors thereof, shall have all the same powers, rights and privileges, and be subject to the same liabilities, except as herein otherwise enacted, as are provided by the aforesaid charter granted by the General Assembly of the State of North Carolina to the aforesaid coal fields and South Carolina Railroad Company, and to the stockholders and president and directors thereof."

Plaintiff next put in the act of 1861 (13 St. at Large, 79), amending the charter of Cheraw & Coal Fields Railroad Company. This act need not be set out here, as it merely provides for a change of commissioners, except that, for reasons which will appear hereafter, I deem it advisable to set out section 2 of same, which is as follows: "That the company chartered by said act, when organized, and the president and directors thereof, shall, in addition to the powers, rights and privileges granted by said act, have all the powers, rights and privileges, and be subject to the same liabilities, except as otherwise specially provided for, as are conferred and imposed by the amendments to the charter of the Cheraw & Coal Fields Railroad Company, by an act entitled, 'An act to revive and continue in force an act entitled "An act to incorporate the Cheraw and Coal Fields Railroad Company,"' passed by the General Assembly of the state of North Carolina, at the session of 1856-57, chapter 66, ratified on the thirteenth day of September, 1861."

The plaintiff next put in the act of 1868 (14 St. at Large, 80). This act reaffirms the charter, but amends same by changing the name from Cheraw & Coal Fields to Cheraw & Salisbury Railroad Company, and need not be set out.

The plaintiff next offered in evidence certified copy of the act of the state of North Carolina of 1857 (Priv. Laws 1856-57, c. 66), incorporating Cheraw & Coal Fields Railroad Company; same being certified by the secretary of state of North Carolina, and under the official seal of state. The defendant objected to the introduction of the certified copy of this act on the ground that the only way same could be proved was to bring the custodian of the acts of that state here to testify, or else take his testimony. I overruled this objection, for the reason that notice to produce t he original had been served on the defendant, and certainly the original of this public act of a sister state could not be brought here for the purpose of this reference, and, in the absence of a specific attack on same, that the copy of the act certified by the secretary of state and under official seal of the state was admissible.

This act is very voluminous, but, inasmuch as plaintiff relies on section 10 of same in its proof of title, I deem it advisable to set out that section in full, as follows: "Section 10. Be it further enacted, that in the absence of any written contract between the company and any owner or owners of said land, through which the said railroad may be constructed, in relation to said land, it shall be presumed that the land upon which the said 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 and...