Southern Ry. Co v. Day

• Decision Date: 16 November 1926
• Docket Number: (No. 12102.)
• Citation: 138 S.E. 870
• Parties: SOUTHERN RY. CO. v. DAY.
• Court: South Carolina Supreme Court

138 S.E. 870

SOUTHERN RY. CO.

v.DAY.

(No. 12102.)

Supreme Court of South Carolina.

Nov. 16, 1926.

Gary, C. J., dissenting.

Appeal from Common Pleas Circuit Court of Greenville County; John S. Wilson, Judge.

Action by the Southern Railway Company against A. F. Day. Judgment for defendant, and plaintiff appeals. Affirmed.

The exceptions are set out below as directed by GARY, C. J., in his dissenting opinion:

"(1) That his honor erred in admitting the testimony of A. N. Bozeman, a witness for the defendant, over objection, as to what he had done with reference to erection of buildings onhis property across the street from the property involved; it being respectfully submitted that Mr. Bozeman's property was not in any way involved, and such testimony involved the merits of another case contrary to the principle announced by the Supreme Court in the case of Southern Railway Co. v. Howell, 79 S. O. page 288, 60 S. E. 677, the same being incompetent, irrelevent, and immaterial.

"(2) That his honor erred in making the following ruling in passing upon the motions for a directed verdict: 'I don't see where the ten years comes in. Of course, that may be a circumstance, but if it was for a month, a few weeks, or a year, or six months, if a person went believing he had the right to do certain things on the railroad's right of way and the officers of the railroad saw that being done, parties asserting the right to do it and stood by when good conscience says you must speak out and allow it to be done, permitted to expend money, I don't think the ten years' proposition comes in at all'—it being submitted that said ruling was contrary to the law of South Carolina, in that his honor in effect held and charged the jury that a railroad company could be estopped from asserting its title to a right of way by not acting in a month, a few weeks, etc., and that ten years' adverse possession had nothing to do with it, whereas the court should have held that the railroad company could not be estopped from asserting its right unless it had been guilty of some direct act of misrepresentation or fraud which induced an innocent third party to act to his detriment and that the railway company had a right to bring an action within ten years to clear its right of way of obstructions.

"(3) That his honor erred in not directing a verdict for the plaintiff and in holding as follows: 'I am going to tell the jury this: Gentlemen of the jury, if a party, for instance, a railroad company, has a right of way, if the railroad company sits idly by and allows an innocent party to spend money, believing he had a right to do it on the right of way of the railroad company and the railroad company knowing it and don't speak and object, and allow a party or parties to spend their money on there, knowing it to be done and don't object to it, why it is a matter for them to say in good conscience whether or not he is estopped. Whether or not that was done I am going to leave that to the jury'—it being respectfully submitted that said ruling was erroneous in that:

"(a) It was a charge upon the facts, in that the court, in charging as to the law of estoppel made direct reference to 'a railroad' when the law of estoppel applies to any person or corporation, and in using the language quoted above the court charged directly upon the facts of the case.

"(b) The doctrine of equitable estoppel had no application to this case, as there was absolutely no evidence upon which to submit this principle to the jury; the railroad company not having been guilty of any misrepresentation of fraudulent act, and the defendant and his predecessors having admitted that they made no inquiry whatever as to the width of the right of way.

"(c) The court overlooked the fact that the defendant and his predecessors were the owners of the fee and could use the land for any pur pose not inconsistent with the railroad's use, and that the matter of an inconsistent use is one of law for the courts, and that the railroad company would have a right of action any time within the statute to test the question of inconsistency.

"(4) That his honor erred in charging the jury as follows: 'But I tell you that is what estoppel is; it is where a party, although he may have the best title, if he allows a man, believing he has a title, to go and expend his money on the property of the other man and the other man stands by and allows that done to the other man's injury, when he ought to speak in good conscience, the law says you are estopped' —it being respectfully submitted that this was an erroneous statement of the law, and such law had no application to the case at bar, in that defendant and his predecessors had title to the property and plaintiff had a mere easement, a public trust, to wit, a right of way for public purposes, which it was its duty to keep open for benefit of the people, and, as the defendant and his predecessors had the fee-simple title in said property, plaintiff could only bring action when they had used said property in a manner inconsistent with the railroad's use, and a wooden store building 51 feet from the center of the track was not such an obstruction as to call for drastic action in a moment of time.

"(5) That his honor erred in refusing plaintiff's third request to charge, as follows: 'The jury is charged that, if the Greenville & Columbia Railroad took possession of the right of way at the point in question under its charter, and that said railway and its successors, the Columbia & Greenville Railroad, occupied it under an unrecorded deed for a period of thirty years or more, then the jury is charged that when said railroad was sold by order of court that the plaintiff railroad company acquired whatever rights as were possessed by the original companies'—it being submitted that this was a proper statement of the law of the case, and the plaintiff was entitled to have the jury instructed that it had acquired the same rights as the original companies.

"(6) That his honor erred in charging defendant's first request, as follows: 'The paper offered in evidence and upon which the plaintiff relies in this case, is before me for construction. It is my duty to construe it. I hold that it is not a deed, for the reason that it has not witnesses, and that two witnesses are necessary to every valid deed'—it being submitted that his honor should have charged that the defect in the deed had been cured by more than thirty years' adverse possession, and the paper was a deed because the defect had been cured by more than ten years' adverse possession.

"(7) That his honor erred in charging the jury as follows: 'A man may not have a right, gentlemen; he may think he has the right; you see that's the great importance here in the court's establishing these rules. A man, as a matter of fact, may not have any right; he may think he has a right. He may not. He may be a trespasser, but he may be honest and really think that he has a right to do so and so. He goes and spends his money, may spend thousands; the other man knows the first man has no right; although the first man honestly believe that he did have the right the second man stands by, knowing the first man had noright to do it, and permits him to innocently ' go and spend maybe hundreds or thousands of dollars erecting property there at great cost, believing he had a right to do it. The law says that in good conscience the second man must assert his right and say, "You must not do that, that's my property;" and, if he stands by, by acts or words and does anything to encourage the man to go on and doesn't object when the law says he ought to speak up, that's the doctrine of estoppel'—it being submitted that this was error in that:

"A. It was a charge upon the facts, intimating to the jury that defendant had 'spent maybe thousands' of dollars, in the absence of any testimony as to the cost of the building erected by defendant's predecessors.

"B. It was an improper and misleading statement of the law as the defendant and his predecessors owned the fee-simple title to the property and knew their rights and should have known the railroad's rights,

"(8) That his honor erred in not granting a directed verdict for the plaintiff, in that defendant's sole defense was the law of estoppel, and his honor erred in holding that this issue should go to the jury, inasmuch as one of the main foundations to the assertion of the doctrine of estoppel is innocence and good faith on the part of the one setting up this defense, and in this case defendant and his predecessor admitted that they made no inquiry whatever as to the status of the right of way before purchasing the property and before acting in the premises; that, if defendant and his predecessor knew or ought to have known that the right of way at this point was 100 feet on either side of the center of the track, and were not deceived by any act or words of the plaintiff, then they could not rely upon estoppel, and there was absolutely no evidence of misconduct on the part of the railway company.

"(9) That his honor, the presiding judge, erred in charging the jury the sixth request of the defendant, as follows: 'I charge you that, if one person stands by and sees another erect permanent improvements upon land which said person knows to be his own, and does not object, but permits his neighbor to go on and finish said improvements, then he is estopped by conduct and cannot after that claim the property'—it being submitted that said request embodied a proposition which was not sound law and which was improper and prejudicial in that:

"(a) It fixed no time when estoppel will take effect, but limits the time to the finishing of the alleged improvement,

"(b) It was error, in that this was an equity case, and in such cases the equitable doctrine of estoppel will not apply except in cases of nonaction for a period equal to that of the statute of limitations, to wit, ten years or more.

"(c)...