Tompkins v. Augusta & K.R. Co.

• Decision Date: 09 September 1884
• Citation: 21 S.C. 420
• Parties: TOMPKINS v. AUGUSTA & KNOXVILLE R. R. CO.
• Court: South Carolina Supreme Court

21 S.C. 420

TOMPKINS v. AUGUSTA & KNOXVILLE R. R. CO.

Supreme Court of South Carolina.

September 9, 1884

1. In action by the heirs at law of a testator against a railroad company to enjoin the construction of its road across the lands of testator, devised to his widow, but claimed by plaintiffs as residuary devisees, the complaint alleged that the widow, now deceased, intestate, had renounced her devise and claimed dower in all of her husband's lands. Held , in subsequent action between the same parties, that they could not now deny this allegation and claim as heirs at law of their mother.

2. After evidence offered of facts and circumstances to show that a railroad company had entered by permission the lands of plaintiff, it was competent for defendant to ask its witness whether there " was any act of the owner indicating a dissent."

3. Plaintiff could not testify as to the contents of letters written by him to the president of the defendant company, no notice having been given to defendant to produce the letters themselves. Nor did such testimony, objected to by defendant become competent upon defendant's testifying, without objection, to such contents.

4. Where a railroad company constructs its road-bed over lands of another by permission of the " owner," it is not a trespasser, and the holders of the legal title to such land cannot maintain an action for the recovery of the strip of land so occupied by the railroad company and for damages therefor.

5. Where a railroad company made entry upon land and constructed its road-bed thereon by permission of the " owner" (which permission may be inferred from the facts and circumstances), such entry is not unlawful, and the railroad company is only liable thereafter for the value of the land so occupied and for any special damage caused by such occupation. Gen. Stat. of 1872, ch. lxiii. § 83.

6. The word " owner," as used in this section of the act means the person who has control of the land; therefore permission given by executors, who had, under their will, a power of sale for purposes of division or of paying debts were the owners within the meaning of this section.

7. Where the constitutionality of a statute was not questioned in the Circuit Court, nor by any exception, but is raised for the first time in the arguments here submitted, it is not properly before this Court for consideration.

Before HUDSON, J., Edgefield, March, 1883.

This was an action by Stephen S. Tompkins and others, who were the residuary devisees under the will of James Tompkins, their father, and were also heirs at law of their intestate mother Huldah Tompkins, against the Augusta & Knoxville Railroad Company, commenced December 9, 1882. The case is thus reported by the Circuit judge:

In the answer to the complaint the railroad company rests its claim to the right of way over the land in question upon the acquiescence, consent, and permission of the plaintiffs, not denying that the fee in the land is vested in them. At the trial the testimony was directed mainly to this leading issue. The plaintiffs had not granted the right of way, nor had the railroad company had the same condemned under the provisions of the act of the legislature in such case made and provided, nor had any steps been taken by the plaintiffs to recover compensation for the right of way, which the company alleges it is ready, and has always been ready, to make. The chief issue of fact, therefore, submitted to the jury was, whether the defendant company has acquired a right of way over the land of the plaintiffs by their acquiescence, consent, and permission.

The manner of acquiring rights of way is prescribed in Revised Statutes (old edition), pages 352-356, sections 75 to 86 inclusive. Under section 83 of this act the defendant has acquired its right of way, if at all. Therefore in opening my charge to the jury I proceeded to read and expound this statute in its various provisions, and especially the said last named section, and instructed the jury that if the railroad company has acquired a right of way over the lands of the plaintiffs, it is under the provisions contained in section 83 of said act, and not otherwise, as there is no evidence of a grant nor of a condemnation; nor of use and enjoyment of the road-bed a sufficient length of time to raise the presumption of a grant under the common law rule. The company rests its claim, and under the evidence in this case can rest its claim, alone upon the said act of the legislature, and the evidence in the case to bring the alleged acquired right of way within its terms.

I then turned to the case of Verdier v. Railroad Company , 15 S.C. 477 to 484, as the case containing the authoritative interpretation and most lucid exposition of the sections of said act, and especially of section 83. I told the jury that I preferred to adopt the language of that case in expounding to them the law of the case under consideration, as it was directly applicable and binding; and I proceeded to read in full the words of Justice McGowan on pages 482 and 483, wherein he explains and interprets the language and meaning of section 83. I then made the application to the present case, leaving it entirely to the jury to say whether the evidence in this case satisfied them, from its preponderance, that the plaintiffs had permitted the defendant corporation " to enter upon the construction of their highway without previous compensation," & c. If the jury should so conclude, I proceeded, in the language of that case, to explain to them how the plaintiffs were estopped from afterwards denying the right of way to the defendant, and how they would be entitled alone to compensation, and the mode and manner in which they would, under the act, have to secure such compensation.

I instructed them that the permission of the executors of the will of James Tompkins, deceased, under whom the plaintiffs claim, would be sufficient, and would be binding upon all the plaintiffs, carefully leaving to the jury to find whether or not that permission had been given. I further explained to them that permission might be given expressly by word of mouth, or might be implied from acts, conduct, silence, and acquiescence, reading again the language of Justice McGowan, and the authorities cited by him in support of this proposition. It appeared in evidence that the road was not constructed in its entire course through this plantation on the exact line of the original or Ashmore survey, but that in a part of its course or line of construction it deviated somewhat from the said survey, and ran in rear of, instead of in front of, the residence, and near the family burial ground. The general direction of the line, however, was that of the Ashmore survey, and, in part, the two lines were the same.

I charged the jury that, if the permission to enter and construct was given, and the entry was made and the construction begun in consequence of this permission, the deviation on a part of the line such as was proved in this case, would not work a forfeiture of the permission, nor would it authorize the executors to revoke the general permission, in consequence of which the money, labor, and time of the company had been expended and bestowed in the construction of the road. A general grant of the right of way, or a general permission to enter and construct, when accepted and acted upon in whole or in part, cannot afterwards be, by the owner of the land, construed into a grant or a permission to locate and construct only on a certain mathematical line.

My charge in this respect is misapprehended by the plaintiffs' counsel, and incorrectly set out in the case. It is also misapprehension and error in the plaintiffs' counsel to represent me as saying to the jury: " It is for you to say whether from all the circumstances the company believed that there was permission. If so, then that ends the case," & c., & c. The belief of the company could have no weight in enabling the jury to infer permission, unless it was created by the acts, declarations, or conduct of the plaintiffs, the executors. From these and these only could the jury infer permission and find it as a fact, and so I instructed them.

The first three exceptions relate to questions of evidence. The question set forth in the first exception was allowed to be asked. Upon the second and third, I have to remark that Mr. S. S. Tompkins was allowed to say that he sent the letters spoken of in these exceptions, but was not allowed to state the contents of the letters, because no notice had been given defendant to produce said letters, and because it may readily be perceived that the exact language and full purport and meaning of a letter written upon such a subject is of the utmost importance. The witness might honestly think he had said one thing, whilst the letter, if produced, would amount to something quite different. Hence I hold that the letter is the best evidence of its contents, and parol evidence thereof could not be admitted, since no notice to defendant had been given to produce these letters.

As to the fourth and fifth exceptions, it is enough to say that what I did say in regard to the act of 1868, and the case of Verdier v. Railroad Company , I have already explained.

Exception 6. I charged that the executors had power to give permission, but did not say that they " spoke the voice of the whole family."

Exception 7. Correctly put.

Exception 15. I refused the proposition contained in this request because, as I told the jury, the question was not one of deceit, misrepresentation, and fraud, but one of permission.

Exception 16. I refused this request, because, as I have said, the executors, who were in charge of the land and in full control thereof...