Blume v. Southern Ry. Co

• Decision Date: 05 April 1910
• Parties: BLUME v. SOUTHERN RY. CO., CAROLINA DIVISION.
• Court: South Carolina Supreme Court

67 S.E. 546

85 S.C. 440

BLUME

v.SOUTHERN RY. CO., CAROLINA DIVISION.

Supreme Court of South Carolina.

April 5, 1910.

1. Easements (§ 5^*) — Prescription — Presumption of Grant.

Prescription rests in the presumption of a grant or dedication, and, where one has no power either to grant or dedicate, the presumption cannot arise.

[Ed. Note.—For other cases, see Easements, Cent. Dig. § 21; Dec. Dig. § 5.*]

2. Easements • (§ 10*) — Prescription — Presumption of Grant.

Neither private individuals nor the public can acquire by prescription any right to the use of the right of way of a railroad which is in-consistent with the purpose for which it was acquired or which will impair the railroad company in discharging its duties to the public.

[Ed. Note.—For other cases, see Easements, Dec. Dig. § 10.^2-*]

3. Easements (§ 10*) — Prescription — Presumption of Grant.

Where no exclusive possession of a part of a railroad right of way for the statutory period under a claim of right, adverse to the railroad company, nor any use thereof for that period inconsistent with the purpose for which the right of way was acquired, was shown, no right by prescription to use any part of the right of way was shown.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 27-32; Dec. Dig. § 10.*]

4. Easements (§ 10*) — Prescription — Presumption of Grant.

A railroad either owning the fee in land for its right of way or only an easement therein cannot alien or lose by prescription any right therein compatible with the public purpose or which was necessary in discharging its public duties.

[Ed. Note.—For other cases, see Easements, Dec. Dig. § 10.*]

Gary, A. J., dissenting.

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

Action by W. P. Blume against the Southern Railway Company, Carolina Division. From a judgment for plaintiff, defendant appeals. Reversed.

J. F. Carter, for appellant.

S. G. Mayfleld, for respondent

HYDRICK, J. Plaintiff recovered judgment against defendant for obstructing an alleged street in the town of Bamberg, by building thereon a depot and platform, and thereby blocking the way to and from plaintiff's residence. The alleged street is a part of defendant's right of way. Plaintiff attempted to prove title by prescription in the town to that portion of the defendant's right of way in question by showing an adverse use thereof by the public as a street for more than 20 years.

It appears that a part of the town of Bamberg has been built up along defendant's right of way, and that at least since 1894 the right of way has been laid out on a map of the town as a street, and that for many years a part of it has been worked and kept up as a street by the town authorities, and property bounding on it has been sold with reference to it as a street. It does not appear, however, that the defendant or any of its predecessors in title knew that the right of way was laid out on the town map as a street, but they knew that a part of it was worked by the town and used as a street. The testimony shows that the portion of the right of way now in question was not worked or used by the public as a street prior to the year 1897, when plaintiff purchased and built a dwelling house on the right of way, which is described in his deed as a "street, known as North Railroad avenue." But, for some 20 or 30 years previous to that time, there had been a path or road along that portion of the right of way opposite to the lot bought by plaintiff, and for some distance along the railroad. Over this road, cross-ties and wood had been hauled and deposited on the right of way for railroad purposes, and a few persons, who lived in the section beyond plaintiff's lot, went along the right of way to and from their houses; but the road or path was not generally used by the public. The depot and platform were built in 1905.

The South Carolina Canal & Railroad Company was incorporated by an act of the Legislature, and built the railroad now owned by the defendant. The act of 1833 (8 St. at Large, p. 384) provides that, in the absence of contract with the owners of the lands through which the road was built, it shall be presumed that the land on which the road was built, together with 100 feet on each side of the center of the road, has been granted by the owners thereof to the company, and that the company and its...