Ross v. Georgia, C. & N. R. Co.

• Decision Date: 29 October 1890
• Citation: 12 S.E. 101,33 S.C. 477
• Parties: ROSS v. GEORGIA, C. & N. RY. CO.
• Court: South Carolina Supreme Court

12 S.E. 101

33 S.C. 477

ROSS v. GEORGIA, C. & N. RY. CO.

Supreme Court of South Carolina

October 29, 1890

Appeal from common pleas circuit court of Chester county; PRESSLEY Judge.

J. L Glenn, for appellant.

Henry & Gage, for respondent.

McIVER J.

The substantial allegations of the complaint are as follows: That plaintiff, being the owner of a lot in the town of Chester is entitled to "a private way" known as "Peace Street," 30 feet in width, as his only means of egress from his said lot into Pine street, a public highway in said town; that defendant has obstructed said private way "by erecting therein and across the same an embankment of earth from four to twelve feet high, so that the plaintiff is utterly unable, as was and is his right, to pass and repass along the said way with teams or on foot;" that the plaintiff has been damaged thereby to the amount of $500, for which sum, together with costs, judgment is demanded. The defendant, by its answer, denies these allegations, and as a further defense says that, if the said private way has been in any way obstructed by defendant, it has been done in the construction of its railway upon its own land, in accordance with and by virtue of the powers granted by the legislature to defendant in its charter, and that plaintiff still has an unobstructed way from his lot to Pine street, provided by defendant; and it is submitted that if plaintiff has been deprived of his use of Peace street by the construction of defendant's railway, his only remedy is to have his damages assessed in the mode prescribed by statute. The testimony on the part of the plaintiff was that he had purchased from one Wylie a lot upon which he resided, which was described in the deed from said Wylie as bounded on the south by Peace street, and was so represented on a plat attached to said deed; "that Peace street, laid out 30 feet wide, was, at the time of plaintiff's purchase, and at the trial, the plaintiff's only way leading from out of the plaintiff's lot to a public way, to-wit, Pine street; that the defendant corporation constructed its road-bed along and in the said Peace street, from its junction with Pine, south-westwardly to a point where it passes the south-western corner of plaintiff's lot, beginning with a fill about twelve feet high, and ending with a fill four feet high in front of plaintiff's lot; that, after the construction of the fill, Peace street was twenty-five feet wide in front of plaintiff's house and twelve feet wide at the junction with Pine street, and at most other points was twenty feet wide." At the close of the testimony on the part of the plaintiff, a motion for a nonsuit was made and refused, to which exception was duly taken. The defendant then offered testimony tending to show that the original location of the road-bed had been so changed as to leave a way 25 feet wide between the foot of defendant's embankment, and the front of plaintiff's lot, and that defendant had procured from the land-owners, between plaintiff's lot and Pine street, an additional right of way, so as to give plaintiff an unobstructed outlet to Pine street, not narrower at any point than 12 feet, as indicated by the diagram offered in evidence, which should be incorporated in the report of this case.

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Upon the case as thus presented, the jury were instructed, among other things, as follows: "Where one person sells a lot and calls for a street as a boundary of the lot he sells that gives the purchaser of the lot the right to use the street. *** No corporation has the right to obstruct him in the use of it. Admitting that the railroad company had the right to cross it, or cross it diagonally, it is still, under the law of land, bound to cross it in such a manner as not to obstruct him in the use of it. If it has done so, he is entitled to your verdict: First. That the plaintiff is entitled to the use of P. street as a private way. Your verdict will be that he is entitled to the use of the street,--to the unobstructed use of P. street; and we find that the defendant corporation has obstructed the said street, and would give the plaintiff so many dollars damages." Then, after instructing the jury as to the claim for exemplary damages,--a matter not now involved in the case,--the circuit judge proceeded to say: "Then, what are the actual damages? The party, it seems, was obstructed in the use of the street wholly for about a year, or perhaps a little more, (though of this we do not find in the testimony as reported in the case a particle of evidence.) Furthermore, even when the street was open so that he may have the use of it, he has not the use of the street according to the width that his purchase called for. That is the testimony, and the question then is, does the narrowing of that street injure the value of his property? Will it permanently injure the value of his property? If so, then it is damaged. Anything which will permanently injure the value of his property, the damage to that property must be allowed." And, at the conclusion of the charge, these words are used: "My simple charge is that if that street is obstructed and made less convenient by the railroad, so as to injure the value of the property, the plaintiff is entitled to recover the loss in value to his property, and also for the time his road was obstructed, whatever the jury may think is right." The jury returned a verdict in the following form: "We find the plaintiff has the right to the unobstructed use of Peace street, and five ($5) dollars damages in this case."

The defendant appeals upon the several grounds set out in the record, in which error is imputed to the circuit judge in the following particulars: (1) In refusing the motion for a nonsuit. (2) In not holding "that the use of a part of Peace street by the defendant in the construction of its railway was lawful and not wrongful, and that plaintiff was only entitled to have an assessment of the amount of compensation due him for the obstruction of Peace street by defendant." (3) In holding that plaintiff was entitled to any other remedy than the special proceeding provided by statute for the assessment of the amount to be paid by railway companies for rights of way. (4) In holding that a private right of way or the use thereof could not be condemned, or in any way acquired, without the consent of the owner. (5) In holding that the defendant could not, by virtue of its charter, construct its railway upon land over which plaintiff had a right of way, even though defendant had permission of the owner of the land, or owned the land itself. (6) In holding that defendant could not, for the purpose of constructing its railway, alter and change the location of Peace street, even though as good a way should be provided for those entitled to the use of Peace street. (7) "Because his honor erred in directing the jury to find in the verdict anything else than the amount of damages they might think the plaintiff entitled to for the changing and alteration of Peace street." It has been deemed necessary to make a much fuller statement of the proceedings below than is usually required, because, as it seems to me there is some confusion as to the real nature and scope of the action. Even the circuit judge in some portions of his charge seems to have regarded it as an action to recover damages for the permanent injury done to plaintiff's own property by the construction of the railroad over and along the private right of way claimed by him in what is called "Peace Street," although, strictly speaking, it...