Rankin v. Sievern & K.R. Co.

• Decision Date: 13 September 1900
• Citation: 36 S.E. 997,58 S.C. 532
• Parties: RANKIN v. SIEVERN & K. R. CO. et al.
• Court: South Carolina Supreme Court

36 S.E. 997

58 S.C. 532

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

Supreme Court of South Carolina

September 13, 1900

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 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 employed 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 hands, 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 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 stated 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 date.' Section 1752, Rev. St. 1893, reads: 'Nothing herein contained shall be construed to prevent entry upon any lands for 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 hereinbefore directed: provided, such petition shall be filed within twelve months after the highway shall have been completed through his or her lands.' Under this act, if a railroad corporation is permitted, by the owner of any land, 'to enter upon' or being 'the construction of the highway', then the entry, possession, and subsequent construction, as we shall see hereafter, is lawful, and in no wise a trespass. If the owner of the lands permit the corporation 'to enter upon the construction of the highway,' he has the right, 'after the highway shall have been constructed,' or completed, to demand compensation, as provided in said act. The words used in paragraph 1 of the complaint, above stated, when read in connection with the other allegations of the complaint, mean that the 'line' of the railroad--the 'highway', as termed in the statute--was then located, the defendants were in possession, and had entered upon the construction of said highway under the law, and under this state of facts the defendants were lawfully in possession of the land, and with the permission of plaintiff. Counsel for plaintiff argue that the allegations in the fourth paragraph of the complaint that the hands were 'then engaged in finishing, grading, and laying the track, and putting up telegraph poles along the line of the road', is consistent with the idea that said hands were at work on the part of the line which did not traverse the land in question; therefore that paragraph does not amount to an allegation that defendants were in possession of the land in question. This construction of the language of the complaint cannot be sustained. It is the duty of plaintiff to state her case.

"On May 3, 1898, at the very time of the trespass, the allegation is that 'the gang of hands' were 'then' engaged in 'grading,' etc., the 'line'; that 'in the course of their engagement' they were 'proceeding along the line,' and were 'in the act' of cutting the oak trees, 'near the residence' of plaintiff, when she 'approached them,' etc. No one would, 'under these allegations,' suppose that the 'foreman' and 'gang of hands' were upon the premises of the plaintiff merely 'for the purposes of survey and location' (Rev. St. § 1752); but the natural inference is that they had entered upon, begun 'the construction of the highway'. The allegation in paragraph 5 that defendants had not 'acquired a right of way through the lands of this plaintiff' was insufficient. Tompkins v. Railroad Co., 33 S.C. 218, 11 S.E. 692. Plaintiff contends that the complaint alleges that the defendants had not acquired, in any way, a right of way across plaintiff's lands; therefore they had no right of entry except for the purpose of survey and location, which does not allow defendants to cut down valuable trees, or to make any alteration of the premises; that the foreman and hands were committing 'a trespass in the name of the defendants' and that 'the line of authorities in South Carolina, which hold that the land once taken possession of by a railroad company under the exercise of the right of eminent domain cannot be recovered in an action is entirely inapplicable to the case,' and in support of this position cites Tompkins v. Railroad Co., 37 S.C. 387, 16 S.E. 149, as conclusive upon the point: 'I have at some length analyzed the complaint, and held that it does allege that the defendant companies had entered upon the land in question, and were engaged in the construction of their road or highway; and a comparison of the complaint in this action with that in Tompkins v. Railroad Co., supra, will show that there is little in common between the two.' There is no allegation in the complaint herein that the entry of the defendant companies upon the land was without the consent of plaintiff, which, under the Tompkins Case, is essential. There are no allegations in the complaint that defendants entered upon the land after notice from the owner refusing consents, were proceeding along the 'line' which was 'then' being graded, etc., 'without having acquired a right of way through the lands of this plaintiff,' which allegation amounts to

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