Charleston & W. C. Ry. Co v. Reynolds

• Court: United States State Supreme Court of South Carolina
• Citation: 48 S.E. 476,69 S.C. 481
• Decision Date: 30 July 1904
• Parties: CHARLESTON & W. C. RY. CO. v. REYNOLDS et al.

48 S.E. 476
69 S.C. 481

CHARLESTON & W. C. RY. CO.
v.
REYNOLDS et al.

Supreme Court of South Carolina.

July 30, 1904.

476

RAILROADS — ENTRY—LOCATION—PETITION FOR COMPENSATION—RIGHT OF WAY—CONVEYANCE BY LIFE TENANT—RIGHTS OF REMAINDERMEN —WILLS—CONSTRUCTION.

1. Entry by railroad company on land for survey and location is not entry for location within Civ. Code 1902, § 2196, requiring petition for compensation to be filed within twelve months.

2. Where a life tenant conveyed to a railroad company a right of way, he only conveyed the interest that he had, but not the rights of the remaindermen, so that the statute began to run against the remaindermen only at the death of the life tenant.

3. Testator bequeathed to his son certain land for life; at his death to his children, or their children who may be living. Civ. Code 1902, § 2483, provides that no words of limitation shall be necessary to convey an estate in fee simple by devise, but every gift of land shall be considered a gift in fe" simple, unless such construction is inconsistent with the will of the testator. Held, that the provision of the will gave to the children of the life tenant a fee-simple estate, which vested in them on the death of testator, with possession postponed until the death of the life tenant.

4. Where a life tenant conveys a right of way to a railroad company, and the remaindermen are minors, they may have damages to their lands assessed against the railroad company after the death of the life tenant, and after more than one year from completion of the road, under Civ. Code 1902, §§ 218T, 2188, 2196, providing that a petition to recover such damages shall be filed within 12 months after the road shall have been completed through the land.

5. Where the procedure provided by the statute is applicable to the ascertainment of the amount of damages on laying out a right of way, such procedure will be enjoined when the right to compensation is denied until the right is determined in the action for an injunction.

6. Where a life tenant conveys a right of way to a railroad company, the remaindermen are entitled to recover for their contingent interest the value of such interest at the time of taking, with interest.

Appeal from Common Pleas Circuit Court of Greenwood County; Jos. A. McCullough, Judge.

Action by the Charleston & Western Carolina Railway Company against J. B. Reynolds and others. Decree for defendants, and plaintiff appeals. Affirmed.

The report of Master Moore, omitting statement of issues, is as follows:

"In this case, as I see it, there are two main questions: First. Are the defendants entitled to compensation? Second. If so, are they entitled to recover under statutory proceedings? There are many questions of fact to be settled before answering these questions. From the testimony I find the following facts: In 1882, and up to the time of his death, Bennett Reynolds was the owner in fee of the tract of land mentioned and described in the complaint as the 'McGee tract.' He died July 3, 1883, leaving a will devising the said lands to bis son, B. F. Reynolds, 'to have, use and enjoy the same during said B. F. Reynolds' natural life; at his death to his children or their children who may be living at that time.' B. F. Reynolds, the son, with some of his children, resided on said lands at the time of the death of his father, and lived on the lands till he died, May 30, 1901. J. B. Reynolds, Nannie R. Briggs, F. B. Reynolds, Minnie Reynolds, Eva Reynolds, and W. T. Reynolds, defendants herein, were the only children of B. F. Reynolds, a son of Bennett Reynolds, and were living at the date of the death of B. F. Reynolds; the youngest of whom is now twenty-four years old, and the oldest is forty years old. The main line of the Charleston & Western Carolina Railway Company runs through the said lands, but its spur track to the Grendel Mills is located on other lands than the McGee tract (barely touching the McGee tract at one point). The Greenwood, Laurens & Spartanburg Railway is now owned and operated by the Charleston & Western Carolina Railway Company as a part of its line; the said Greenwood, Laurens & Spartanburg Railway Company having been consolidated into the Port Royal & Western Carolina Railway Company, whose road was afterwards purchased by the Charleston & Western Carolina Railway Company. The Greenwood, Laurens & Spartanburg Railway Company entered the said McGee tract of land in 1882, during the lifetime of Bennett Reynolds, its owner, for the purpose of surveying and locating its road thereon. Several preliminary and location surveys out of the town of Greenwood north towards Laurens were made prior to the death of Bennett Reynolds. Two of these, at least, passed through the McGee tract of land, and a preliminary and location survey through said McGee tract of land was changed at least one time. The Greenwood, Laurens & Spartanburg Railway Company obtained no conveyance or right of way from Bennett Reynolds. In fact, the testimony shows that he was a very old man at the time—about eighty-two years old—weak in mind, and incapable of attending to business. On October 13, 1883, before any work was done on construction, B. F. Reynolds (the life tenant) made a deed of conveyance of a right of way 200 feet wide through the said McGee tract of lands to the Greenwood, Laurens & Spartanburg Railway Company. Under this deed the said Green wood, Laurens & Spartanburg Railway Company entered the said lands and constructed their road thereon. Grading was begun ten miles north of Greenwood, at the river, in October, 1883, and was not completed through the said McGee tract till the spring of 1884. No notice of entry for construction was served upon the children of B. F. Reynolds. The Greenwood, Laurens & Spartanburg Railway Company used the said right of way continuously until the said company was consolidated into the Port Royal & Western Carolina Railway Company, whose road was afterward purchased by the Charleston & West-

[48 S.E. 477]

era Carolina Railway Company. The Charleston & Western Carolina Railway Company, successors in title to the Greenwood, Laurens & Spartanburg Railway Company, now use the said right of way, and have used it since their purchase. B. F. Reynolds, the life tenant, died May 30, 1901, and statutory proceedings for compensation and damages were begun October 11, 1901, by the defendants, other than Clerk Turner, as petitioners—the remaindermen—as owners in fee of the McGee tract of land, under and by virtue of the will of their grandfather, Bennett Reynolds.

"Section 2196, Rev. St., referring to previous sections 2187-2195, inclusive, is as follows: 'Nothing herein contained shall be construed to prevent entry upon any lands for the purposes of survey and location; and if in any case the owner of any lands shall permit the person or corporation, requiring the right of way over the same, to enter upon the construction of the highway without previous compensation, the said owner shall have the right after the highway shall have been constructed to demand compensation, and to petition for an assessment of the same in the manner hereinafter directed: provided, such petition shall be filed within twelve mouths after the highway shall have been completed through bis or her lands.' The entry for the purpose of survey and location in this instance was made during the lifetime of Bennett Reynolds. The railroad company, under the above section quoted, had the right to enter for the purpose of survey and location. But Bennett Reynolds died before construction was begun, and under a deed by B. F. Reynolds (life tenant) to the railroad company for a right of way through the premises the road was built. No notices were served on the remaindermen by the railroad company, nor did the remaindermen serve any on the railroad company. Does this deed of B. F. Reynolds bind the remaindermen for a longer time than during the lifetime of B. F. Reynolds? I think not. Section 17, art. 1, of the Constitution, provides 'that private property shall not be taken for private use, without the consent of the owner, nor for public use, without just compensation being first made therefor.' In Cureton v. R. R. Co., 59 S. C. 371, 37 S. E. 914, it is said that remaindermen are such owners as fall within the protection of this provision of the Constitution. Also, section 24G5 of the Code of 1902 is as follows: 'No estate remainder, whether vested or contingent, shall be defeated by any deed of feoffment with livery of seizin.' B. F. Reynolds, it seems to me, could grant or convey no greater estate than he had, to wit, a life estate; and, as in the case cited above, upon falling in of the life estate the remaindermen could bring an action for compensation. I find, therefore, that the defendants, other than Clerk T. C. Turner, have the right to compensation for the strip of land through their lands used on the main line of the plaintiff's road, but no right to compensation on account of its spur track to Grendel Mills, since that track is built on lands other than the McGee tract.

"The next question is, are the defendant petitioners entitled to recover under statutory proceedings, the plaintiff having denied their right to compensation? It seems to me that they are not. To use the language used in Railway Co. v. Ridlehuber, 38 S. C. 313, 17 S. E. 24, by the late Chief Justice Mclver: 'The statute seems to proceed upon the assumption either that the rightto compensation has been conceded or has been already determined in some other way.' In the same case it is held 'that the provisions of the statute law of this state as to the right of way for railroads (Gen. St. 1882, §§ 1550-1561), only govern the manner of claiming the right of way and the mode by which the amount of compensation is to be ascertained, where the right to compensation is conceded or has been already determined. But the statute law has prescribed no mode by which the...