Carolina & N.W. Ry. Co. v. Alexander

• Decision Date: 10 October 1929
• Docket Number: 12743.
• Parties: CAROLINA & N.W. RY. CO. v. ALEXANDER, Mayor, et al.
• Court: South Carolina Supreme Court

151 S.E. 893

155 S.C. 91

CAROLINA & N.W. RY. CO. v. ALEXANDER, Mayor, et al.

No. 12743.

Supreme Court of South Carolina

October 10, 1929

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

Action by the Carolina & Northwestern Railway Company against C. N Alexander, Mayor of the Town of Clover, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The decree of the circuit court was as follows:

Decree.

This action came on to be heard before me at the present term of this court. The plaintiff asks a permanent injunction. The Carolina & Northwestern Railway Company operates a line of railway from Chester, in the state of South Carolina, to Edgemont, in the state of North Carolina, passing through the town of Clover, in York county, S.C. In 1925, the town of Clover began the paving of two of its streets known as North and South Main street. This street parallels the track of the railway company and abuts on the tracks on the west side. The railway company contended that the town was encroaching on its right of way in the construction of this street, and sought to enjoin the laying of the streets. The record discloses that the temporary injunction was refused by Judge Featherstone on the ground that irreparable injury had not been shown, but the town was required to give bond in the sum of $10,000 to remove such paving at any point where it encroached upon the alleged right of way, should there be an encroachment, pending the final hearing of this matter. This bond was given by the town.

Upon the call of the case for trial, counsel for plaintiff stated that the action was equitable in its nature and was a matter for the court, and requested that the court submit queries to the jury to be answered by it, in aid of the conscience of the court. This request was acceded to. The sole issue before the court is whether or not the town of Clover has encroached upon the right of way of the Carolina & Northwestern Railway Company in its paving of West Main street, and, if so, to what extent.

The railway company alleges that the Chester & Lenoir Narrow Gauge Railway Company was incorporated in 1873; that by the terms of its charter it had conferred upon it all of the rights and authorities conferred upon the Northeastern Railroad Company, which was chartered in 1851, and was authorized upon the consent of the stockholders of each company to consolidate with the King's Mountain Railroad. There was conferred upon the King's Mountain Railroad all the rights and privileges of the Barnwell Railroad Company which said road had conferred upon it all the rights conferred upon the Greenville & Columbia Railroad. There was conferred upon the King's Mountain Railway Company by its charter granted in 1851, among other things, the following with reference to its manner of acquiring a right of way:

"In the absence of any contract or contracts with the said Company in relation to the land through which the said road may pass signed by the owners thereof or his agent, or any person in possession thereof, which may be confirmed by the owner thereof."

A right of way of 65 feet on each side of the center of the track, and, if the landowner did not move for an assessment or compensation within two years after the construction of the road, the right of way was secured to the King's Mountain Railroad Company. It is this provision in the charter of the King's Mountain Railroad Company which the Carolina & Northwestern Railway Company claimed was conferred upon it, through its predecessor in title, the Chester & Lenoir Narrow Gauge Railroad, and for the further reason that in 1874 there was a consolidation between the Chester & Lenoir Narrow Gauge Railroad Company and the King's Mountain Railroad Company, and that by virtue of this reference to the charter of the Northeastern Railroad Company and the consolidation of the Chester & Lenoir Narrow Gauge Railroad with the King's Mountain Railroad referred to, that the Carolina & Northwestern Railway Company had a charter right of way of 65 feet on each side from the center of the track. The King's Mountain Railroad Company never built its line or operated through the town of Clover. Its line started at Chester and ended at York, and was completed about 1854. The Chester & Lenoir Narrow Gauge Railway Company started at York and extended through York county into North Carolina. The King's Mountain Railroad Company was chartered in 1851, and was built in 1852-1854; and the Chester & Lenoir Narrow Gauge Railway Company was chartered in 1873, and built in 1876. The charter of the Chester & Lenoir Narrow Gauge Railway Company contains this important provision:

"Provided, that said Railroad shall be subject to the provisions of an Act entitled, 'An Act to declare the manner in which the lands or right of way over the lands of persons or corporations may be taken for the construction and uses of Railway and other works of internal improvements,' ratified September 22nd, A. D. 1868."

This is the Condemnation Act of 1868, and will be found in the 14th Statutes, page 89, and is almost identical in wording with the Condemnation Act as it exists to-day. The Constitution of 1790 has no provision with reference to the taking of private property for public use, the use of a corporation, but the Constitution of 1868, art. 1, § 23, provides:

"Private property shall not be taken or applied for public use, or for the use of corporations, or for private use, without the consent of the owner or a just compensation being made therefor: Provided, however, That laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations, and for works of internal improvement, the right to establish depots, stations, turnouts, etc.; but a just compensation shall, in all cases, be first made to the owner."

And section 3 of article 12 is:

"No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law."

The Condemnation Act of 1868 prescribes that notice shall be given to the owner, and that compensation shall be made; that a jury shall be impanelled and the amount to be paid the landowner be ascertained and this money deposited before the railroad or other corporation seeking to exercise the right of eminent domain can enter upon or take possession of the land. This method is exclusive.

The complaint alleges: "That at the time the C. & L. N. G. Railroad was constructed no contract or contracts of any character were ever made by and between the Railroad Company and the owners of the land through which the same ran at the time, nor with any authorized agent of the owner, nor at any time previous or subsequent to the construction of the Railroad; and that having entered without consent or contract with the owners of the land *** without previous compensation" (italics mine), a right of way was acquired by the said railway company through its predecessors in title to a right of way or easement extending 65 feet on each side of the track.

The complaint further alleges, however, that by reason of said charter and consolidations, the Chester & Lenoir Narrow Gauge Railroad acquired such right of 65 feet "less the part actually occupied by the street or road, and not exceeding twenty-five feet in width; that the said plaintiff has held and enjoyed the said right and title in and to the said lands with the exception of the part actually occupied by the road or street" (that is, the street in controversy), and that it holds "A good right and title for Railroad purposes" to a space of 65 feet on either side of the track "with the exception of so much of the sixty-five feet on the Western side of the track as has actually been used by the said town for a highway or street, but which strip so actually used for a highway was not in excess of twenty-five feet in width," and which said highway did not approach nearer the center of track of plaintiff than 25 feet, and that while the plaintiff has a right of way of 65 feet under its charter and the charter of its predecessor in title, "the said strip of land, exclusive of the highway located thereon for a distance of twenty-five feet on the Western side from the center of the track has always been used and enjoyed by the plaintiff for Railway purposes."

The defendant the town of Clover admits the charter of the Chester & Lenoir Narrow Gauge Railway Company, admits that the Chester & Lenoir Narrow Gauge Railway Company was the predecessor in title of the Carolina & Northwestern Railway Company, but denies specifically that the Carolina & Northwestern Railway Company could acquire any "charter right of way" upon the ground that the said charter was not granted until 1873, and was made subject to the Constitution of 1868, and specifically the Condemnation Act of that year; that the road was not chartered until 1873, and was not constructed until 1876, and that it could acquire a right of way only in the manner and by the method prescribed by the laws in force on the date of its charter and construction, to wit, the Condemnation Act of 1868.

I am of the opinion that the defendant is correct in this position. Had there been no provision in the charter of the Chester & Lenoir Narrow Gauge Railway Company requiring it to obtain its right of way under the provisions of the Condemnation Act of 1868, I would be of the opinion still that by the provisions of the Constitution of 1868, above referred to, the ...