Boney v. Cornwell
| Decision Date | 10 October 1921 |
| Docket Number | 10720. |
| Citation | 109 S.E. 271,117 S.C. 426 |
| Parties | BONEY v. CORNWELL ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Chester County; T. J Mauldin, Judge.
Action by J. W. Boney against Mary Jane Cornwell and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
The paragraph of the charter referred to in the opinion follows:
XX. Be it further enacted, that in the absence of any contract or contracts with the said company in relation to lands through which the said road or its branches may pass, signed by the owner thereof, or by his agent or any claimant or person in possession thereof, which may be confirmed by the owner thereof, it shall be presumed that the land upon which the said road or any of its branches may be constructed, together with a space of 65 feet on each side of the center of the said road, has been granted to the company by the owner or owners thereof; and the said company shall have good right and title thereto, and shall have, hold, and enjoy the same as long as the same be used, only for the purpose of said railroad, discharged from all persons' liens, and no longer, unless the person or persons owning the said land at the time that part of the said road which may be on the said land was finished, or those claiming under him, her, or them shall apply for an assessment of the value of the said lands as hereinbefore directed, within two years next after that part of said road was finished; and in case the said owner or owners, or those claiming under him, her, or them, shall not apply within two years next after the said part was finished, he, she, or they shall be forever barred from recovering said land, or having any assessment or compensation therefor; provided, nothing herein contained shall affect the rights of femes covert or infants, until two years after the removal of their respective disabilities; and provided also, that if the said road, or any part thereof, should be sold at execution sale, for the debts of said company or otherwise, then, and in that case, all the right and title to the land which may have been condemned by virtue of this act shall immediately revert to the original owners, unless the purchaser or purchasers at such sale shall keep up the road for the use of the public, in the same manner and under the same restrictions as by this act it is contemplated the Charlotte & South Carolina Railroad Company should do.
Gaston & Hamilton, of Chester, for appellants.
Glenn & Glenn and S.E. McFadden, all of Chester, for respondent.
Action for the recovery of certain real estate, described in the complaint, containing 13 acres, more or less, tried before Judge Mauldin and a jury, upon certain issues submitted involving title and right to possession. The verdict was in favor of the plaintiff, and the defendants have appealed.
While the complaint seeks the recovery of the entire tract of 13 acres, as a matter of fact the contest is limited to a narrow strip containing between 2 and 3 acres, upon which is located a storehouse, a dwelling house, and other buildings; the remainder of the tract being in the possession of the plaintiff, whose title thereto is not contested. We quote from the appellant's argument:
"The land in dispute is the small area of about two acres, on which are located the store building, dwelling, and barn."
A large body of land, of which the 13-acre tract was a part, belonged to Jane I. Cornwell, who was the widow of Elijah Cornwell and the stepmother of his two sons, Eli Cornwell and Dr. W. J. W. Cornwell. The plaintiff claims that on February 15, 1878, Jane I. Cornwell conveyed the 13-acre tract to her stepson Dr. Cornwell; that Dr. Cornwell died in July, 1910, intestate, leaving as his sole heir at law his daugter Mary C. Holler; that on January 7, 1916, Mary C. Holler conveyed to him 63 acres of land, consisting of 50 acres which Dr. Cornwell had previously owned and as to which there is no dispute and the 13-acre tract. The two tracts adjoin each other; the 50-acre tract lying south of the other.
The defendants claim under the will of Jane I. Cornwell, dated February 10, 1870, taking effect at her death in February, 1878, a few days after the execution of the deed to Dr. Cornwell above referred to. By the will she devised her entire estate to her stepson Eli Cornwell, in trust for the use and benefit of himself and his wife, Mary C. Cornwell, during their joint lives and to the survivor for life, and after the death of both to be equally divided between the children of Mary C. Cornwell then living and the children of such as may have predeceased her. Eli Cornwell is dead; Mary C. Cornwell, his widow, is living; she is a defendant in this action, along with the other defendants above named, her children.
The controversy over the disputed area will be better understood by reference to the following rough draft of the situation:
(Image Omitted)
There is no dispute as to the location of the southern line (10) between the 13-acre tract and the 50-acre tract (3) owned by Dr. Cornwell, nor as to the location of the western line between the 13-acre tract and the Barbara Corder land (4); the controversy is as to the location of the northern line between the 13-acre tract and the other land owned by Jane I. Cornwell (5), of which the 13-acre tract was a part; the plaintiff contends that the true line is that run by the surveyor McLarnon, indicated as (8) on the draft, which would give him the boundaries A E H D, inclosing the disputed area A B C D; the defendants contend that the true line is that run by the surveyor Hardin, indicated as (9) on the draft, which would give the plaintiff the boundaries B E F G, excluding the disputed area A B C D, and giving it to them under the will of Jane I. Cornwell.
The description of the 13-acre tract contained in the deed from Jane I. Cornwell, to Dr. Cornwell, dated February 15, 1878, is the source of the uncertainty and the basis of the controversy. It is as follows:
"All that piece, parcel or tract of land on the west side of the C., C. & A. R. R., containing 13 acres, bounded on the north by lands of Jane I. Cornwell, on the east by C., C. & A. R. R., on the south by Dr. W. J. W. Cornwell, on the west by Barbara Corder land."
The locus of irritation is the descriptive line "on the east by C., C. & A. R. R." Does that mean that the eastern boundary line of the 13-acre tract is the center of the railroad tract, or the western line of the strip constituting the railroad right of way? The right of way of the railroad at this point is 65 feet on each side of the center of the tract, which, on...
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