Southern Ry. Co. v. City of Greenwood

• Decision Date: 01 February 1928
• Docket Number: No. 196.,196.
• Citation: 40 F.2d 679
• Parties: SOUTHERN RY. CO. v. CITY OF GREENWOOD et al.
• Court: U.S. District Court — District of South Carolina

40 F.2d 679 (1928)

SOUTHERN RY. CO. v. CITY OF GREENWOOD et al.

No. 196.

District Court, W. D. South Carolina, Greenwood Division.

February 1, 1928.

Blythe & Bonham, of Greenville, S. C., and John B. Hyde, of Washington, D. C., and Frank G. Tompkins, of Columbia, S. C., for plaintiff.

Park & McDonald, Mays & Featherstone, and W. H. Nicholson, all of Greenwood, S. C., for defendants.

WATKINS, District Judge.

This matter comes before me upon a motion by the defendants for an order "requiring the Clerk of Court to place this case on Calendar One for trial for the reason that the pleadings raise an issue of title to real estate, which under the Constitution and laws of the State of South Carolina is triable by a jury." Complainant filed its bill in equity in which the essential facts to be considered in this motion, briefly stated and omitting formal jurisdictional averments and matters of mere historical detail, may be summed up as follows:

Southern Railway Company, complainant, owns and operates a line of railway running through the city and county of Greenwood in this state and district, which was constructed and completed by its predecessor, the Greenville & Columbia Railroad Company, in the year 1853, and has been continuously operated by complainant and its predecessors in title ever since that date. It is alleged that complainant owns a right of way extending from a point in the city of Greenwood eastwardly in the direction of Columbia, S. C., having a total width of 200 feet, that is, 100 feet on each side of the center line of the main track of railroad, such right of way having been acquired through legislative charter granted to the Greenville & Columbia Railroad Company under the provisions of XI Statutes 348. It is further alleged that the defendants have recently chosen a new and altered route for a road known as state highway No. 21 by locating the same on the right-hand side of the railroad proceeding from Columbia in the direction of Greenville, and that they are now engaged in grading, and are about to erect a permanent improvement thereon consisting of a concrete, hard-surfaced road, together with ditches and drains and other appurtenances. It is further stated that, although the defendants have had permissive use of a roadway on the opposite side of the track, there has been no public use as a road or otherwise of that portion of the right of way now encroached and sought to be further encroached upon. It is further stated that complainant made formal objection to the construction of such permanent improvements before the work had been in any way substantially proceeded with and before any of the permanent improvements had been laid.

It is alleged that the portion of the right of way now sought to be encroached upon is and soon will be needed for necessary railroad purposes, and that the trespass and encroachment by defendants will cause permanent and irreparable injury, will cast an illegal cloud upon the title of the complainant unless enjoined by the court, and that there is no plain and adequate remedy at law to prevent the threatened injuries.

Defendants' answers embrace complete denials of complainant's title to any right of way in the premises in question, set up in themselves paramount title acquired from the actual owners of the property, and further allege that, if the complainant ever had title to its alleged right of way, it has been lost by adverse possession and by acts constituting estoppel, and further that the permanent improvements sought to be enjoined have already been substantially completed. It will be observed that the answers do not challenge the sufficiency of the bill to present a proper cause for equitable relief, nor is it claimed in such answers that the complainant has a plain and adequate remedy at law. Indeed, it was conceded at the hearing upon application for a temporary injunction that the averments of the bill standing alone present a proper case for equitable jurisdiction. And there can be no doubt that, where a railroad company has acquired, and in the exercise of its franchise is in possession of, a right of way over real estate, the proper procedure to avoid encroachments such as are herein alleged is by bill in equity.

Upon and after the filing of the bill, complainant made application for, and procured from the court, a rule requiring the defendants to show cause why, pending the determination of the suit, a temporary injunction should not be granted against the construction of the threatened permanent improvements. At the hearing upon this rule, affidavits were submitted by the parties to the cause in support of their various contentions, and the rule was heard upon these affidavits and the verified pleadings, and it was shown to the satisfaction of the court that the laying of the concrete roads and streets constituting the permanent improvements sought to be enjoined had already been substantially completed. It appeared, therefore, that, independently of the question of title, and without in any way passing upon such question, no practical good could result from granting a temporary injunction, that the railroad had not shown immediate and emergent need of the strip of land in question, nor that any additional injury could result from the alleged encroachment pendente lite, and that the question of injunction had therefore become substantially moot.

It might have been deemed appropriate to dispose of the motion before me by granting it or disallowing it in a brief formal order, either without opinion or with an opinion setting forth in a few words the reasons for the court's decision. It has been thought advisable, however, because of the public interests involved, and also for the purpose of clearly setting out the court's interpretation of the proper practice under the Rules of Practice for the Courts of Equity, promulgated in 1913, to extend the discussion to such length as will give the members of the bar of the district a clear and comprehensive statement of the proper procedure. The review of the authorities has been exhaustive and far beyond the scope of the authorities cited by counsel. There will be no attempt, however, to make a thorough analysis of all cases investigated because of the emergent need of a prompt decision. As I construe equity rules 22 and 23 (28 USCA § 723) along with the decided cases, it is not necessary to limit my decision to the precise terms of the written motion filed with me. It is both the right and the duty of the court to have the issue of title now presented tried by the appropriate tribunal whether at law or in equity. There has been no waiver by the defendants of any of their legal rights, and, if the case as it now stands is a law case, or if the question of title be fundamental and triable by jury as of right, the court can pursue no other course. I take it that the motion of the defendants negatives the idea of waiver, since it demands in terms the trial of the question of title by a jury as in a law action.

At the outset it should be observed that, prior to the adoption of these rules, the transfers permitted in rules 22 and 23 were not permissible. The United States courts had always held to the doctrine that an action begun in equity must proceed to its conclusion on the equity side. Plaintiff's right to the relief sought must be asserted from the beginning to the end in that suit and in accordance with the principles and procedure in chancery courts. It was held, however, in certain cases where the issue of title was made by the answer, that the proper practice was to suspend further proceedings in the court of equity until by separate action at law this question could be determined. The division between law and chancery procedure was sharply defined and rigorously maintained, and in the trial of cases in equity the federal courts were in no way to be controlled by the procedure under the state Codes because of the conformity act. It was accordingly held that, in the absence of expressed statutory or constitutional provisions, a jury was no part of the chancery system, the court having the power to decide all the issues whether of law or fact, and neither party entitled as a right to have the issue of fact tried by a jury. 21 Corpus Juris, 585, 594. Where issues in chancery were submitted to a jury, they were merely advisory. Kohn v. McNulta, 147 U. S. 238, 13 S. Ct. 298, 37 L. Ed. 150; Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672; Idaho & O. Land, etc., Co. v. Bradbury, 132 U. S. 509, 10 S. Ct. 177, 33 L. Ed. 433; Nashville R., etc., Co. v. Bunn (C. C. A.) 168 F. 862; Childs v. Mo., etc., Ry. Co. (C. C. A.) 221 F. 219; Boston, etc., Ry. Co. v. Sullivan (C. C. A.) 275 F. 890; Van Iderstine v. National Discount Company, 227 U. S. 575, 33 S. Ct. 343, 57 L. Ed. 652.

It is by no means declared, however, in any decision of the Supreme Court of the United States, which has come to my attention in the exhaustive but necessarily hurried examination which the decision of this motion requires, that even in an equity case in which the fundamental issue is dependent upon a question of fact triable by a jury, and in which that right has been guaranteed by the Constitution of the state and of the United States, that equity would be permitted to determine such question without the jury's decision at law upon such question first being had. It is also true that in many equity cases questions of fact ordinarily triable by jury have been determined under the old rules of equity, even after jury trial was demanded. It is true, however, that even in the cases arising before the adoption of the new equity rules those decisions were based upon the fact either that the questions were incidental rather than basic or that bar of further proceeding in equity was not demanded as a constitutional right. It would seem elementary as well as logical that in a chancery case, where the relief sought should depend...