Tomkins v. Augusta & K. R. Co
| Citation | 33 S.C. 216,11 S.E. 692 |
| Court | South Carolina Supreme Court |
| Decision Date | 30 June 1890 |
| Parties | Tomkins et al. v. Augusta & K. R. Co. et al. |
Ejectment—Pleading—Railroad Eight of Wat.
A complaint in ejectment is had on demurrer which states that the defendant, a railway company, entered upon and took possession of a strip of land, on which to construct its road, unlawfully, and without the consent of the plaintiffs, who were seised and possessed, and that it is now in unlawful possession, and unlawfully withholds it; the complaint not showing, also, that the company had not acquired a right to enter by its exercise of the power of eminent domain.
Appeal from common pleas circuit court of Edgefield county; J. J. Norton, Judge.
Joseph Ganahl and Sheppard & Bro., for appellants.
Gary & Evans, for respondents.
The plaintiffs, by their complaint, allege that they were seised and possessed of certain lands, described in the complaint, during the year 1870, and for many years prior thereto; that the Augusta & Knoxville Railroad Company, a duly-chartered corporation, on or about the 15th of November, 1881, "entered into and upon said premises, and unlawfully, and against the consent of said plaintiffs, took possession thereof, for the purpose of constructing and operating a railroad upon and over "said lands; "that the said Augusta & Knoxville Railroad Company is now in the unlawful possession" of said lands, and "unlawfully withholds the same from plaintiffs;" and that the Port Royal Railroad Company, a body politic and corporate under the laws of this state, is the lessee of the Augusta & Knoxville Railroad Company, and is for that reason made a party defendant to this action. Upon these allegations the plaintiffs demand judgment for the possession of said lands, and for costs and disbursements. To this complaint, defendants interposed an oral demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action, which being overruled, the defendants appeal upon the ground of error in overruling the demurrer. So that the single question presented is whether the facts stated in the complaint are sufficient to constitute a cause of action.
The allegation in a complaint that the defendant has done an unlawful act, as, for example, has unlawfully entered upon the lands of plaintiffs, is a mere statement of a legal conclusion, unless it is accompanied with an allegation of facts going to make the act in question unlawful. Hence so much of the...
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Livingston v. Ruff
...remedy was a motion to make definite and certain. Appellant's counsel cites Tutt v. R. Co., 28 S. C. 396, 5 S. E. 831, Tompkins v. R. R., 33 S. C. 217, 11 S. E. 692, and Wallace v. R. Co., 34 S. C. 62, 12 S. E. 815, to show that the allegations that plaintiff "has lawful title, " and that d......
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Livingston v. Ruff
...remedy was a motion to make definite and certain. Appellant's counsel cites Tutt v. R. Co., 28 S.C. 396, 5 S.E. 831, Tompkins v. R. R., 33 S.C. 217, 11 S.E. 692, and Wallace v. R. Co., 34 S.C. 62, 12 S.E. 815, show that the allegations that plaintiff "has lawful title," and that defendants ......
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Rivers v. Bradley
...a legal conclusion, unless it is accompanied with an allegation of facts going to make the act in question unlawful. ' Tompkins v. Railroad Co., 33 S.C. 216, 11 S.E. 692. So in Madden v. Railway Co., 35 S.C. 383, 14 713: 'Negligence being a mixed question of law and fact, it is not sufficie......
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Cherry v. Fewell
...such refusal that the damages must be assessed, upon payment of which the city council is authorized to proceed. See Tompkins v. Railroad Co., 33 S. C. 216, 11 S. E. 692. But waiving this, which may be regarded as somewhat technical, the failure to allege the other fact, to wit, that the st......