Atlantic Coast Line R. Co. v. Little

• Decision Date: 09 December 1940
• Docket Number: 15179.
• Citation: 12 S.E.2d 7,195 S.C. 455
• Parties: ATLANTIC COAST LINE R. CO. v. LITTLE.
• Court: South Carolina Supreme Court

12 S.E.2d 7

195 S.C. 455

ATLANTIC COAST LINE R. CO. v. LITTLE.

No. 15179.

Supreme Court of South Carolina

December 9, 1940

R E. Hanna, of Cheraw, for appellant.

Woods & Woods, of Marion and P. A. Murray, Jr., of Cheraw, for respondent.

L. D LIDE, Acting Associate Justice.

The complaint herein alleges that during the year 1857 a railroad corporation was chartered by the General Assembly of this State, under the corporate name of Cheraw and Coal Fields Railroad Company, and authorized to construct a railroad from Cheraw to the North Carolina state line, in the direction of Wadesboro, and under this statutory enactment the right-of-way was 200 feet wide, that is to say, 100 feet wide from the centre of the track on each side, with the "conclusive presumption of a grant thereto two years after construction thereof", which was completed many years ago; and the complaint further alleges that by virtue of certain other statutes and conveyances the plaintiff above named has acquired all of the property, rights and powers originally owned by this company; and that the defendant above named is the owner of lands in Chesterfield County lying on both sides of plaintiff's right-of-way, about three and one-half or four miles northwest of Cheraw, she having acquired these lands long after the railroad was built, and that her purchase thereof was subject to plaintiff's right-of-way. It is further alleged that the defendant is committing acts of trespass upon the right-of-way, in that, she has recently erected and is maintaining a small building, used as an outhouse or toilet within the limits of the right-of-way of plaintiff. And the principal purpose of this suit is to require the defendant to remove this building from the right-of-way. It is further alleged that the plaintiff has permitted the defendant to cultivate and plant parts of the right-of-way, and such use of the land was not inconsistent with its use for railroad purposes, but that the erection of the building aforesaid would amount to a continuing trespass entitling the plaintiff to equitable relief.

The defendant's answer, in the first paragraph thereof, states that she denies all the allegations of the complaint "except as hereinafter expressly admitted". But in paragraph II she admits that she is the owner of the lands located generally as set forth in the complaint and that these lands were acquired by her after the construction of the railroad "to which reference is made in the complaint", and that she has with the full knowledge and acquiescence of the plaintiff "cultivated the said lands continuously since she has owned the same", and she alleges that she has in other respects continuously exercised full rights of ownership, including the construction and maintenance of the building in question, all with the knowledge and acquiescence of plaintiff until the very recent date when the plaintiff first announced its objection to the maintenance of the building. She alleges in paragraph III that the use of the lands by her does not in any manner or degree interfere with or impair any right-of-way or other easement which the plaintiff may have, and that there is no actual or probable future use of such right-of-way or easement as could be so impaired. She then sets up as a separate defense that for more than twenty years before the institution of this action she, as the owner of the lands described in the complaint, has occupied and used the same, exercising full rights of ownership thereupon, and that such use and occupation have been continuous, adverse and notorious, with the full knowledge of the plaintiff, and that she therefore pleads the applicable statute of limitations.

The plaintiff demurred to the answer on the ground that it failed to state facts constituting a defense to the cause of action alleged in the complaint, for the specific reasons set forth in the demurrer, and this demurrer was sustained by a formal order handed down by Hon. E. C. Dennis, Judge of Fourth Circuit; and from his order the defendant appeals to this court.

There are a number of exceptions, but we think they raise three points only, with perhaps some subsidiary questions. These three points or questions are:

(1) Did the defendant have constructive notice of the limits of the right-of-way?

(2) Was the right-of-way 100 feet wide from the centre of the track on each side, or was it limited to so much thereof as was actually in use? (3) Does the answer raise an issue of title by adverse possession or otherwise?

Referring to the first question, it seems quite clear that the defendant had full constructive notice of the limits of plaintiff's right-of-way, for as alleged in the complaint, and as will appear by reference to XII Statutes at Large, page 645, of which the court takes judicial notice, the plaintiff's predecessor under a statutory charter acquired a right-of-way 100 feet wide on each side of the centre of the railroad, with the presumption after the expiration of two years following the construction of the road that the right-of-way was granted to the company by the owner or owners thereof; and the defendant admits that her lands were acquired by her after the construction of the railroad.

In the interest of complete accuracy it should be stated here that the above-mentioned act, which was ratified December 21 1857, recites that the purpose of chartering this railroad was to connect it with the Coal Fields and South Carolina Railroad, in North Carolina, and the act expressly provides that "the company hereby incorporated, when organized *** shall have all...