Cayce Land Co. v. Southern R. Co.

• Decision Date: 04 September 1918
• Docket Number: 10085.
• Citation: Cayce Land Co. v. Southern R. Co., 96 S.E. 725, 111 S.C. 115 (S.C. 1918)
• Parties: CAYCE LAND CO. ET AL. v. SOUTHERN RY. CO. CAYCE LAND CO. ET AL. v. SOUTHERN RY. CO. ET AL.
• Court: South Carolina Supreme Court

96 S.E. 725

111 S.C. 115

CAYCE LAND CO. ET AL. v. SOUTHERN RY. CO.

CAYCE LAND CO. ET AL. v. SOUTHERN RY. CO. ET AL.

No. 10085.

Supreme Court of South Carolina

September 4, 1918

Appeal from Common Pleas Circuit Court of Lexington County; J. W. De Vore, Judge.

Actions by the Cayce Land Company and others against the Southern Railway Company, and by the same plaintiff against the same defendant and another. From the decree for plaintiffs in both cases, defendants appeal. Modified and remanded.

B. L Abney, of Columbia, Geo. B. Cromer, of Newberry, and C. M Efird, of Lexington, for appellants.

Lyles & Lyles and George Coffin Taylor, all of Columbia, for respondents.

HYDRICK J.

Plaintiffs brought these actions to recover possession of two strips of land, now occupied by defendants as railroad rights of way or, in the alternative, to recover compensation for the use thereof by defendants. Both strips are on the same tract which is now owned by plaintiffs as tenants in common. One of these strips was taken by the Columbia & Augusta Railroad Company about the year 1867, and the other by the Carolina Midland Railroad Company about the year 1899. Both were taken while the tract was in the possession of a life tenant, or, rather, in possession of persons holding under the life tenant. The railroads named were and are different railroads, built at different times across different parts of the tract; but both roads are now in possession of and are being operated by Southern Railway Company, one as owner and the other as lessee.

The Cayce Land Company is the grantee of all the right, title, and interest of some of the remaindermen in and to the land, and the assignee of their right to compensation for said rights of way, having acquired their said interests before the falling in of the life estate, which occurred in 1915. The other plaintiffs are the heirs of one of the remaindermen. The details of the devolution of the title and interests in the premises to the present parties in interest (plaintiffs and defendants) are not material to the issues. The taking in each case was by authority conferred upon the railroad company by the Legislature, under the state's power of eminent domain. In neither case was there any condemnation proceeding, or notice to the remaindermen of the taking, nor did the remaindermen consent thereto. These facts are established by the findings of the circuit court. But, in the first case, the Southern Railway Company obtained a deed conveying the right of way from the person in possession holding under the life tenant many years after the railroad had been in operation; and, in the second case, such a deed was obtained by the Carolina Midland Railroad Company at or about the time the road was built. In each case, plaintiffs allege that they are owners, as tenants in common, of the fee, and that the entry and taking had been without notice to them, or their predecessors in title, and without their consent, and that they are therefore entitled to immediate possession of the strip, together with the value of the use thereof since the death of the life tenant; but, if the defendant wishes to retain the said strip of land for railroad purposes, they are willing to convey the same upon being paid adequate compensation therefor on the basis of the present value thereof, together with interest thereon from the death of the life tenant.

Defendants denied plaintiffs' right to compensation in each case. In the first case defendants relied upon the presumption created by section 20 of the Charter of the Columbia & Augusta Railroad Company (13 Stat. 206) and, also, upon its possession for more than 40 years under the statutes of limitations. In the second case the defendants relied upon the presumption of title to the easement under the statutes in force at the time of the taking, authorizing the condemnation of rights of way for railroad purposes and the limitation created by that statute; and also on adverse possession in themselves and their predecessors in title for more than 40 years. In both cases defendants contended that the conveyance of the remaindermen's right, title, and interest in the land did not carry their right to compensation, under the authority of Bridges v. Railway, 86 S.C. 267, 68 S.E. 551, Ann. Cas. 1912A, 1056. The defenses were all overruled, and judgment was rendered for plaintiffs in accord with their contention, the court holding that plaintiffs in each case were entitled to recover compensation for the strip of land in question, based upon its present value, together with interest thereon from the death of the life tenant; or, if defendants refused to settle upon that basis, then plaintiffs are entitled to judgment for the possession of the land itself, together with the value of the use thereof since the death of the life tenant.

Section 20 of the Charter of the Columbia & Augusta Railroad Company (13 Stat. 206) provides, in substance, that, in the absence of any contract with the company, signed by the owner thereof or his agent, or any claimant or person in possession thereof, it shall be presumed that the land upon which the road was built, together with 65 feet on each side of the center thereof, was granted to the company by the owner thereof, unless the owner at the time of the completion of the road, or those claiming under him, should apply for an assessment of value within one year after the completion of the road, and, in case of failure to so apply, the owner, and those claiming under him, shall be forever barred from recovering the land, or from having any assessment of compensation therefor, saving the rights of femes covert and infants, until two years after disabilities removed.

The word "owner," as used in the statutes authorizing condemnation of lands for railroad purposes, does not necessarily mean the owner of the legal title to the land but the party in possession and having control of the land at the time of the taking for railroad purposes is the "owner" in the sense in which that word is used in the statutes, at least for the purpose of giving consent to the entry. It follows that, where the entry is made or the land is taken for such purposes with the consent, express or implied, of such an "owner," the railroad company is not a trespasser, and cannot be proceeded against as a trespasser. Tutt v. Railway, 28 S.C. 388, 5 S.E. 831; Tompkins v. Railroad Co., 21 S.C. 420; Railway v. Scott, 38 S.C. 34, 16 S.E....