Southern Ry v. Beaudrot
| Decision Date | 29 March 1902 |
| Parties | SOUTHERN RY. v. BEAUDROT. |
| Court | South Carolina Supreme Court |
RAILROADS—OBSTRUCTION OF RIGHT OF WAY —NONSUIT—IN EQUITY—APPEAL.
1. Where a railroad company succeeded to the rights of way of an old railroad, and a landowner inclosed with a permanent fence a part of such right of way under an exclusive claim of right to use and occupy it, in an action by the railroad for the removal of the fence it was error to grant a nonsuit in absence of proof that defendant did not intend to claim the land adversely to plaintiff's easement, or that the railroad had ceased to use the same for corporate purposes.
2. Where a nonsuit is improperly granted in an equity case on issues submitted to the jury, plaintiff is not estopped from appealing from order thereafter dismissing the complaint because he did not object thereto.
3. A complaint in an action by a railroad company for removal of a fence on its right of way need not allege that the right of way is required for railroad purposes, or that it was so used, or was essential to such use.
Appeal from common pleas circuit court of Greenwood county; Klugh, Judge.
Action by the Southern Railway against M. A. Beaudrot From an order of nonsuit in trial of issue and an order dismissing the complaint plaintiff appeals. Reversed.
T. P. Cothran, for appellant
Sheppards & Grier, for appellee.
The plaintiff brought this action to require the defendant to remove a fence which she had erected on plaintiff's right of way, and to enjoin defendant from further obstructing said right of way. The defendant by her answer, among other thiugs, raised an issue of title to the premises claimed as a right of way, denying that plaintiff had any interest of any kind whatsoever in said premises, and setting up adverse possession of said premises under claim of title, exclusive of any other right. The answer further denied that said fence in any wise interfered with the free and uninterrupted use of said right of way, if any existed. The case was docketed upon the calendar for trial of issues by a jury. Upon the trial before a jury it was admitted by defendant's counsel that the fence in question was within 39 feet of the center of the railroad track of plaintiff. The complaint alleged that the fence was a structure of a permanent character, and the answer admitted that the fence was a substantial plank fence, erected for the purpose of inclosing defendant's lot It also appeared by the pleadings that plaintiff had given defendant notice to remove said fence from the alleged right of way. and that defendant refused to remove the same. Upon the conclusion of plaintiff's testimony, on defendant's mouon, a nonsuit was granted upon the ground that there was no testimony tending to establish the allegation of the complaint that the obstruction to the plaintiffs right of way alleged in the complaint is of a permanent character, was placed there without the knowledge or consent of plaintiff, and is an obstruction to the free and uninterrupted use by the plaintiff of the right of way. After the order of nonsuit, the case was called for trial on calendar No. 2, and an order was granted dismissing the complaint. From the judgment entered the plaintiff appeals, upon exceptions assigning error in the granting of the nonsuit.
We think there was error in granting the nonsuit. It appears that the plaintiff succeeded to the property rights and franchises of the Greenville & Columbia Railroad Company, and that section 11 of the act of 1845, chartering said Greenville & Columbia Rail, road Company, provided: "That in the absence of any written contract between the said company and the owner or owners of the land through which the said railroad may be constructed in relation to said land, It shall be presumed that the land upon which the said railroad is constructed, together with 100 feet on each side of the center of said road, has been granted to the said company by the owner or owners thereof, and the said company shall have good right and title to the same (and shall have, hold and enjoy the same), unto them and their successors, as long as the same may be used only for the purpose of the said road, and no longer, " etc. 7 St. at Large, p. 327. Under the construction placed upon a similar provision in...
To continue reading
Request your trial
-
Bolln v. The Colorado & Southern Railway Co.
... ... 152, 86 ... N.W. 1007; Paxton v. Yazoo &c. R. Co., 76 Miss. 536, ... 24 So. 536; Welch v. Chic. &c. R. Co., 19 Mo.App ... 127; Spottiwoode v. Morris &c. R. Co., 61 N. J. L ... 322, 40 A. 505; Smith v. Pittsburg &c. R. Co., 26 ... Ohio Cir. Ct. 44; Southern R. Co. v. Beaudrot, 63 ... S.C. 266, 41 S.E. 299; Hill v. Southern R. Co., 67 ... S.C. 548, 46 S.E. 486; Southern R. Co. v. Gossett, ... 79 S.C. 372, 60 S.E. 956; Texas &c. R. Co. v ... Maynard, 51 S.W. 255; Northern Pacific R. Co. v ... Ely, 25 Wash. 384, 65 P. 555; Northern Pacific R ... Co. v ... ...
-
Eldridge v. Greenwood
...S.C. at 373 n. 1, 388 S.E.2d at 249 n. 1 (citing Ragsdale v. Southern Ry. Co., 60 S.C. 381, 38 S.E. 609 (1901), and Southern Ry. v. Beaudrot, 63 S.C. 266, 41 S.E. 299 (1902) ("Having a mere easement in the land, [the Railroad's] right of possession is not exclusive....")). See also Boney v.......
-
Faulkenberry v. Norfolk Southern Ry. Co., 25454.
...v. Cheraw and Darlington Ry., 16 S.C. 416 (1882); Ragsdale v. Southern Ry. Co., 60 S.C. 381, 38 S.E. 609 (1901); Southern Ry. v. Beaudrot, 63 S.C. 266, 41 S.E. 299 (1902); Hill v. Southern Ry., 67 S.C. 548, 46 S.E. 486 (1903)(recognizing Railroad acquired only a right of way under 1837 char......
-
Sanders v. Southern Ry. Co
...to in Crocker v. Collins, 37 S. C. 327 [15 S. E. 951, 34 Am. St. Rep. 752], is involved in this case." See, also, Southern Ry. v. Beaudrot, 63 S. C. 266, 41 S. E. 299. The adverse user of the said land by the public, for more than 20 years, raised "the presumption of an antecedent exercise ......