Cureton v. South-bound R. Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GARY
• Citation: 59 S.C. 371,37 S.E. 914
• Decision Date: 06 March 1901
• Parties: CURETON et al. v. SOUTH-BOUND R. CO.

59 S.C. 371
37 S.E. 914

CURETON et al.
v.
SOUTH-BOUND R. CO.

Supreme Court of South Carolina.

March 6, 1901.

EMINENT DOMAIN—REMAINDERS—ACTION FOR COMPENSATION.

1. Remainder-men are within the protection afforded by Const, art. 1, § 17, declaring that private property shall not be taken for public use without just compensation.

2. Since Rev. St. 1893, §§ 1743, 1744, 1752, regulating the manner by which a railroad company may acquire a right of way by condemnation proceedings, provide no method by which the right to demand compensation can be tested when such right is disputed, nor by which the landowner can have the amount of his compensation determined when he does not consent to the company's entry on his land without compensation, a party who has not consented to a railroad company's entry on land to which he claims title can maintain an action against the company to determine his interest in the land and the amount of his compensation.

3. While a life tenant's release to a railroad company of his life estate in lands taken for a right of way protects the company from an action against it as a trespasser, such release does not prevent the remainder-men from recovering compensation.

Appeal from common pleas circuit court of Kershaw county; D. A. Townsend, Judge.

Action by Josephene E. Cureton and others against the South-Bound Railroad Company. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

Wm. M. Shannon and W. H. Lyles, for appellant.

Thos. J. Kirkland and M. L. Smith, for respondents.

GARY, A. J. As the appeal herein is from an order overruling a demurrer to the complaint, it will be necessary to refer to the allegations thereof, which are as follows: (1) The first paragraph merely alleges the corporate existence of the defendant. "(2) That on or about August 19, 1899, the defendant served upon the plaintiffs herein, except Josephene E. Cureton, a written notice, of which the following is a copy: 'South Carolina, Kershaw County. Ex parte the South-Bound Railroad Company. Take notice that the South-Bound Railroad Company will require a right of way for the construction of its railway through your lands » * * [describing same].' (3) That on or about September 18, 1899, in response to above notice, the plaintiffs served upon the defendant company a written notice objecting to the entry of the company upon the said lands without compensation for the required right of way. (4) That despite plaintiffs' written objection the defendant proceeded, without making any compensation to plaintiffs, without any agreement with them, and without any condemnation of the right of way, to construct their railway through said lands, and at this date have completed same, except some work up on the river bridge, now in progress. (5) That at the time of the entry of the defendant upon said lands for the construction of its road, and until January 3, 1900, C. O. Witte, Esq., of Charleston, S. C, was in possession of said lands, and tenant of an interest therein for the life of C. B. Cureton, father of the plaintiffs herein, the said C. O. Witte having acquired the life estate of the said C. B. Cureton; and the plaintiffs, except Josephene E. Cureton, were entitled upon the expiration of the said life estate as remainder-men in fee simple, under and by virtue of the will of Joseph Cunningham, whereby said lands were devised to C. B. Cureton for life, and at his death to the issue of his body living at the time of his death. (6) That on or about November 14, 1899, whilst the construction of said railway through said lands was in progress, the plaintiff Josephene E. Cureton received from the plaintiffs named herein a deed of conveyance of their interest in said lands; the plaintiffs Hannah B. Cure-ton and Evarad B. Cureton, who appear by their guardian ad litem, J. C. Cureton, being, as they still are, minors under the age of

[37 S.E. 915]

twenty-one years. (7) That said C. B. Cure-ton departed this life January 3, 1900, before completion of the railway through said lands, whereupon the fee-simple title In said lands vested in the plaintiffs above named and their grantee, Josephene E. Cureton. (8) That, as plaintiffs are informed and believe, said C. O. Witte, by instrument in writing of date August 31, 1899, released to the said defendant company, to the extent of his ownership therein, a right of way through said lands, and that under said release defendant...