Lee v. Southern Ry. Co.

• Decision Date: 12 October 1955
• Docket Number: No. 17075,17075
• Citation: 228 S.C. 240,89 S.E.2d 431
• Court: South Carolina Supreme Court
• Parties: J. Cain LEE, Appellant, v. SOUTHERN RAILWAY COMPANY, Respondent.

Page 431

89 S.E.2d 431

228 S.C. 240

J. Cain LEE, Appellant, v. SOUTHERN RAILWAY COMPANY, Respondent.

No. 17075.

Supreme Court of South Carolina.

Oct. 12, 1955.

Harvey W. Johnson, James B. Stephen, Spartanburg, for appellant.

Sam R. Watt, Chapter D. Ward, Jr., Spartanburg, Frank G. Tompkins, Jr., Columbia, for respondent.

TAYLOR, Justice.

Appellant in this case seeks injunctive relief and to recover for damage done to certain real estate and a gladiolus crop thereon alleged to have been caused by Defendant's construction of a passing track and resulting diversion and concentration of surface waters thereon.

Respondent's answer amounts to a general denial of the material allegations of the complaint and pleads that the passing track was constructed on its right-of-way.

Upon call of the case for trial in the Court of Common Pleas for Spartanburg County, the trial Judge excluded both in chief and in reply evidence proffered by Appellant in an attempt to overcome Respondent's defense of right-of-way by adverse possession and estoppel. The case was submitted to the jury who found for the Defendant railroad company and the appeal now before us presents the question of whether or not the proffered evidence should have been admitted.

Section 10-661, South Carolina Code of Laws, 1952, provides in part:

'When the answer contains new matter constituting a counterclaim the plaintiff may within twenty days reply to such new matter denying generally or specifically each allegation controverted by him or any knowledge or information thereof sufficient to form a belief. * * * And in other cases when an answer contains new matter constituting a defense by way of avoidance the court may, in its discretion, on the defendant's motion, require a reply to such new matter and in that case the reply shall be subject to the same rules as a reply to a counterclaim.'

In Williams v. Jefferson Standard Life Ins. Co., 181 S.C. 344, 187 S.E. 540, 543, this Court stated:

'Where the new matter, set up in the answer, does not constitute a counterclaim, no reply is necessary or allowable, except under an order of the court. It will thus be seen that the provisions of this section, requiring a reply to a defense by way of avoidance, was intended for the benefit of the defendant by giving him notice of the facts upon which the plaintiff relied. Kennedy v. Hill, 79 S.C. 270, 60 S.E. 689; Rish v. Seaboard Air Line Railway, 108 S.C. 30, 93 S.E. 250.'

In the case of Atlantic Coast Line R. Co. v. Little, 195 S.C. 455, 12 S.E.2d 7, 9, the position of the contesting parties was the converse of the situation here and the Court held that a railroad right-of-way having been acquired for a public purpose could not be attacked by way of general denial, stating:

'It is contended, however, by the defendant that her answer contains a general denial which would be sufficient to raise an issue on this point, but it will be observed by reference to the answer that it does not actually contain a general denial, for the denial is expressly qualified by the subsequent admissions. Burkhalter v. Townsend, 139 S.C. 324, 138 S.E. 34. But we so not think that even a general denial in regular form would have raised an issue as to notice to the...