Rankin v. Sievern & K. R. Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JONES
• Citation: 58 S.C. 532,36 S.E. 997
• Decision Date: 13 September 1900
• Parties: RANKIN. v. SIEVERN & K. R. CO. et al.

58 S.C. 532
36 S.E. 997

RANKIN.
v.
SIEVERN & K. R. CO. et al.

Supreme Court of South Carolina.

Sept. 13, 1900.

[36 S.E. 997]

TRESPASS—COMPLAINT—DEMURRER — PLEADING-CONCLUSION OF LAW—RAILROAD—RIGHT OF WAY—CONSENT OF LANDOWNER—PRESUMPTION OF—ASSAULT AND BATTERY-COMPLAINT.

1. In determining a demurrer to a complaint for trespass on real property on the ground that the complaint does not state facts sufficient to constitute a cause of action, all alleged circumstances of aggravation must be eliminated.

2. Where a complaint for trespass on real property alleges that defendant, a railroad corporation, entered on plaintiff's land, and did certain acts, "without having acquired a right of way through the lands of this plaintiff, " the words, "without having acquired a right of way, " etc., present a mere conclusion of law, and hence must be eliminated in determining a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action.

3. Where a complaint for trespass alleges that defendant, a railroad corporation, by its employés, entered on plaintiff's land to grade and lay the tracks; that such employés were in the act of cutting down two oak trees, when plaintiff requested them not to do so, whereupon the foreman threatened to strike her, and otherwise abused her; that her son came up to inquire the cause of the trouble, whereupon the foreman and the employés, with loud cursing, followed him towards plaintiff's house, threatening him, and thereupon proceeded to lop off several of the branches of such trees, but did not cut them down, and that defendants "thus broke plaintiff's close, "—the words "thus broke plaintiff's close, " etc., being a mere characterization of facts previously alleged, which in themselves must show a breaking of plaintiff's close, must be eliminated in determining a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action.

4. A complaint against a railroad company for trespass on plaintiff's land, which fails to allege that defendant entered on the land for the purpose of constructing its road, without plaintiff's consent, is fatally defective, since a railroad company chartered under the laws of this state, and authorized to construct a road, is not a trespasser for entering on lands for the purpose of such construction, unless such entry is made without the owner's consent.

5. Where a landowner has knowledge of the first entry on his land by a railroad company for the construction of its tracks, and makes no objection thereto in the manner prescribed by statute, his consent will be presumed; and he cannot maintain an action against the company for trespass, his only remedy being for compensation under the condemnation statutes.

6. Plaintiff alleged that defendant, a railroad company, by its employés, entered on plaintiff's land to grade and lay the road; that such employés were in the act of cutting down two oak trees, when plaintiff requested them not to do so, whereupon the foreman cursed her, ordered her to get away from there, or he would nut her in the penitentiary, threatened to strike her, and greatly frightened and intimidated her, and otherwise maltreated and abused her. Held, that the complaint does not state a good cause of action for trespass on the person, as no assault on plaintiff is alleged, and the mere words, under the circumstances, are not civilly actionable.

Appeal from common pleas circuit court of Lexington county; James Aldrich, Judge.

Action by L. C. Rankin against the Sievern & Knoxville Railroad Company and another. From a Judgment for defendants, plaintiff appeals. Affirmed.

The following is the opinion of the court below:

"This case comes before the court upon a motion, in the nature of a demurrer to dismiss the complaint herein upon the grounds that said complaint does not state facts sufficient to constitute a cause of action in said complaint, and the notice of the motion to dismiss the same must be read at this point as a part of this decree. A demurrer admits all the facts properly pleaded in the complaint. Therefore all of the facts stated in the complaint in this action must be regarded as true for the purposes of this motion. This rule does not refer to or include statements of conclusions of law. What are the facts stated in the complaint? Paragraphs 2 and 3 specifically state that both of the defendants are railroad corporations 'duly organized and existing' under the laws of this state. As such they are common carriers, and authorized to enter upon and acquire rights of way. Paragraph 1 alleges that the plaintiff was at the time stated in the complaint, and still is, the owner in fee of a certain tract of land 'through which the line of the Sievern & Knoxville Railroad has since been constructed, and that she was at that time, and still is, residing on said tract of land.' Paragraph 4 states that on or about the 3d day of May, 1898, 'the defendants had in their employ' a certain gang of hands 'then engaged in finishing and grading and laying the track and putting up telegraph poles along the line of the said Sievern & Knoxville Railroad Company, ' the said gang being 'jointly employéd by the Carolina Midland Railroad Company and the Sievern & Knoxville Railroad Company under some arrangement or agreement the terms of which are unknown to the plaintiff.' Paragraph 5: 'That the said gang of hands under one Rutledge, as foreman, was employéd by both of the said defendants, and in the course of their engagement as such were proceeding along the line of the proposed track of the Sievern & Knoxville Railroad Company, and without having acquired a right of way through the lands of this plaintiff, and were in the act of cutting down two large oak trees of great beauty and value, which stood near the residence of this plaintiff, when she approached them, and requested them not to do so, whereupon the said Rutledge, foreman of said gang of bands, cursed this plaintiff, and ordered her to get away from there, or he would put her in the penitentiary, and threatened to strike her, and greatly frightened and intimidated her, she being an old woman; and otherwise maltreated and abused her to her great damage.' It is also alleged that said Rutledge and hands, 'with great violence and loud cursing, ' followed Hiram Rankin, the son of plaintiff, who came up at the time, towards plaintiff's house. Hiram Rankin is not a party to this action. The complaint, after stating these facts, adds 'and thereupon' the

[36 S.E. 998]

said Rutledge and hands 'proceeded to lop off several of the most beautiful branches of said oak trees, but did not cut them down.' It is possible to read this complaint in various ways. The cause of action may be either: (1) The lopping off of 'several of the most beautiful branches' of 'two large oak trees of great beauty and value, which stood near the residence' of plaintiff; (2) trespass upon the realty; or (3) trespass upon the person of plaintiff. As the question is, does the complaint state facts sufficient to constitute any cause of action? and not, does it state facts sufficient to constitute a certain cause of action? we must answer the first query: As the lopping off of the branches of the oak trees was an injury to the realty, and may be included in the second cause of action above stated, we will divide the alleged trespasses into two classes: First, what is alleged as a trespass upon the realty; and, second, what is alleged as a trespass upon the person of plaintiff. The complaint does not state facts sufficient to constitute an action of trespass upon the realty. The complaint states that defendants, railroad corporations, had entered and taken possession of the land, the strip on which the hands were 'then engaged in finishing and grading and laying the track and putting up telegraph poles along the line of the said Sievern & Knoxville Railroad Company.' This allegation and the complaint, read as a whole, clearly state that the defendants had not only entered upon the strip of land, but were also actually and actively engaged in the construction of their railroad thereon. It was argued that the allegations in paragraph 1 that the plaintiff was and is the owner of the land 'through which the line of the railroad has since been constructed' negatives the idea that the defendants were in possession of the land, and constructing a railroad thereon, the argument being that, 'if the railroad has been constructed "since" the date of the alleged trespass, it was not constructed at said...