Eldridge v. City of Greenwood, 1428

• Decision Date: 16 May 1989
• Docket Number: No. 1428,1428
• Parties: Eddie Wayne ELDRIDGE, Charles Louis Beaudrot, Russie Beaudrot Young, Homer Charles Walker and Ray F. Stewart, Individually and on behalf of a Class of Plaintiffs similarly situated, and Herbert Malcolm Crum, Individually and on behalf of a Class of Plaintiffs similarly situated, Appellants, v. The CITY OF GREENWOOD, Greenwood County, and the South Carolina Highway Department, Respondents. . Heard
• Court: South Carolina Court of Appeals

Page 247

388 S.E.2d 247

300 S.C. 369

Eddie Wayne ELDRIDGE, Charles Louis Beaudrot, Russie Beaudrot Young, Homer Charles Walker and Ray F. Stewart Individually and on behalf of a Class of Plaintiffs similarly situated, and Herbert Malcolm Crum, Individually and on behalf of a Class of Plaintiffs similarly situated, Appellants, v. The CITY OF GREENWOOD, Greenwood County, and the South Carolina Highway Department, Respondents.

No. 1428.

Court of Appeals of South Carolina.

Heard May 16, 1989.

Decided Dec. 11, 1989.

J. Kendall Few, Marvin R. Watson, Greenwood, and Thomas E. Hite, Jr., of Hite & Pruitt, Abbeville, for appellants.

W.K. Charles, III, Stephen D. Baggett, of Burns, McDonald, Bradford, Patrick & Dean, and Watson L. Dorn, of Callison, Dorn, Thomason & Garrett, Greenwood, Deputy Chief Counsel Richard D. Bybee, and Asst. Chief Counsel William L. Todd, of S.C. Dept. of Highways and Public Transp., Columbia, for respondents.

CURETON, Judge:

This case concerns the vacated right-of-way of Southern Railway in the City of The history of how the railroad's right-of-way came into existence, its development, and the final decline in its use are detailed in the trial court's order:

                Greenwood, South Carolina.   The Appellants are members of two classes.   One class is composed of abutting landowners along the right-of-way.   The [300 S.C. 371] second class consists of heirs of the original owners of the right-of-way property at the time the right-of-way was acquired.   They collectively allege that under Act No. 2953 of 1845, which authorized the acquisition of the right-of-way by Southern Railway's predecessor in title, the area encompassed by the right-of-way reverts to them upon the removal of the railroad tracks.   The record indicates the predecessor to Southern Railway obtained title to the right-of-way under the 1845 statute by either fee simple deed, condemnation, or statutory grant.   The record does not disclose the size of the two classes or the property owned by the members.   The two classes have not been certified.   The record also does not disclose the specific method by which the railroad obtained the right-of-way through the property of each class member.   The parties agree various portions of the disputed five and one-half mile right-of-way were obtained by each of the three methods provided by the statute (i.e. fee simple deed, condemnation and statutory grant)
                

The Act of 1845 provided for the formation of the Greenville and Columbia Railroad Company to construct a railroad from "the town of Columbia to the town of Greenville, passing through the villages of Newberry and Laurens." The hamlets and towns in the Abbeville District (now Greenwood, Abbeville and Anderson Counties) greatly desired that the Greenville and Columbia Railroad cross the Saluda River and serve the northwestern part of South Carolina. Railway service was all important to the development of commerce and industry. Therefore, there were many rallies and meetings to generate public support and to raise money or capital to pay for the cost of bringing the railroad across the Saluda River and to serve the Abbeville district and to provide a vital rail link to the major cities and towns of South Carolina.

The leaders and citizens of the Abbeville District were successful and the Greenville and Columbia Railroad crossed the Saluda River near Chappels in 1852 and served the hamlets, town and communities of the Abbeville District. As a result, the little hamlet or town of Greenwood moved from near New Market and Cambridge Streets and laid out a new public square with adjoining streets and roads, on each side of the new Greenville and Columbia Railroad. Roads, streets and later, highways, were located along the said railroad, within the railroad right-of-way, for railroad purposes, to provide public access to the railroad passenger and freight depots and to provide public access to the commercial, industrial and residential establishments located along the railroad. In other words, the whole town of Greenwood grew up and developed along the railroad and the roads, streets and highways were located along side the railroad for railroad purposes and to provide the necessary public access to the railroad. Greenwood went on to become the railroad capital of western South Carolina with five (5) separate railroads. Southern Railway Company later acquired the Greenville and Columbia Railroad. See, Southern Railway v. Beaudrot, 63 S.C. 266, 41 S.E. 299 (1902).

With the invention and development of the automobile, the transportation needs of the public underwent a rapid change. Transportation and conveyance of passengers and freight by automobiles, buses and trucks soon rivaled that of the railroads. Passenger service by Southern (formerly Greenville and Columbia Railroad) was discontinued, the passenger depot was removed from the center of Greenwood, the C & W C moved its freight depot out of town, the Southern moved its freight depot to South Greenwood, the C & W C railroad removed its tracks from the center of Greenwood, all spur lines servicing commerce and industry In the 1970's a federal program was implemented to provide for the relocation of the railway tracks from the downtown area to the outskirts of the city. Under this program, the City of Greenwood and Greenwood County acquired the necessary land for the relocation of the tracks by condemnation. The City and County then deeded the acquired property to Southern Railway in exchange for its quitclaim deed to them of its interest in the right-of-way now in dispute. These conveyances occurred in 1984. The Statement of the Case provides "[a] typical section of the right-of-way at the time of relocation consisted of two parallel roads on either side of the vacated track with an unpaved section varying from 25 to 60 feet lying between these two paved roadways."

were discontinued, and finally, the only thing left through the center of Greenwood was a single main track of the Southern Railroad.

The appellants contend the removal of the railroad tracks and the conveyance of the right-of-way to the City and County of Greenwood constituted a breach of the conditions of the 1845 Act resulting in a reversion to them of title to the subject property. The pertinent provision of the 1845 Act provides:

XI. That in the absence of any written contract between the said Company and the owner or owners of land, through which the said Railroad may be constructed, in relation to said land, it shall be presumed that the land upon which the said Railroad may be constructed, together with one hundred feet on each side of the center of said road, has been granted to the said Company by the owner or owners thereof, and the said Company shall have good right and title to the same (and shall have, hold and enjoy the same) unto them and their successors, so long as the same may be used only for the purposes of said road and no longer (emphasis added).... ¹

The Respondents, City of Greenwood, Greenwood County, and the South Carolina Highway Department deny any claim of the appellants to the disputed property. They filed a motion for summary judgment claiming the facts are not in dispute regarding whether the actions of the railroad company amounted to a breach of the conditions of the grant. The trial court granted summary judgment ruling only questions of law were involved. The order held the removal of the railroad tracks and the exchange of rights-of-way did not constitute an abandonment by the railroad of the property for railroad purposes and the disputed property had simply undergone a permitted change in use. The principal issue in this case is whether the removal of the railroad tracks and the conveyance of the right-of-way to the City and County of Greenwood constituted an abandonment of the use of the right-of-way "for purposes of the said [rail]road." Section XI of Act No. 2953, 1845 S.C. Acts 348.

I.

The trial court found the obvious intent of the 1845 Act was to provide for the conveyance or transportation of persons, merchandise, and produce over a railroad to serve the public need. The court then reasoned that since the purpose of the transfer of the right-of-way to the City and County was to effectuate the acquisition of new property which would enable the railroad to serve the public need in a more economical, less hazardous, and more efficient manner, then the right-of-way continued At first glance, it would seem that since the railroad company is not using the easement property at all it cannot be asserted the disputed property is being used for railroad purposes. Ownership of a right-of-way by a railroad company carries with it the right to use the property within the right-of-way for any purpose which furthers the business of the railroad. Sparrow v. Dixie Leaf Tobacco Co., 232 N.C. 589, 61 S.E.2d 700 (1950). When land is taken for railroad purposes, the railroad company acquires "not merely the right to construct and maintain a railroad in accordance with the original plans, but it is the easement to make any use of the land for railroad purposes that the public necessity and convenience may from time to time require." 3 Nichols on Eminent Domain Section 11.11 (3d ed. 1985). So long as the use to which the right-of-way is put comes within these rules, the owner of the servient estate has no cause to complain. Sparrow, 232 N.C. 589, 61 S.E.2d 700. But, while a "railroad company may deal with the right-of-way so acquired as its own in the conduct of its business as a carrier, it cannot dispose of it or use it so as to destroy or impair its ability to serve the public." Matthews v. Seaboard Air Line Ry., 67 S.C. 499, 505, 46 S.E. 335, 336 (1903) (emphasis added).

                to be used for railroad purposes.   We think the trial judge recognized, as we do, that the issue is not whether there has been a failure to use the right-of-way for public purposes, but whether or not the

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