Verdier v. Port Royal R.R. Co.

• Decision Date: 01 July 1881
• Docket Number: CASE No. 1067.
• Parties: VERDIER v. PORT ROYAL RAILROAD COMPANY.
• Court: South Carolina Supreme Court

15 S.C. 476

VERDIER

v.PORT ROYAL RAILROAD COMPANY.

CASE No. 1067.

Supreme Court of South Carolina.

Jul. 27th, 1881.

1. A railroad company constructed its road-bed over lands acquired by the United States, under the provisions of the direct tax act of 1863, (12 U. S. Stat. 422,) without objection by the government, or claim to a right of notice or demand for the appointment of commissioners to assess compensation; after five years' use by the railroad company the United States sold this land by metes and bounds, without reservation of the road-bed, to V., who had knowledge of its possession and use by the railroad company. V. afterwards brought action for the recovery of the strip of this land used by the railroad company, and for damages, and proved his title-deed from the United States. Held, that V. was properly nonsuited.

2. A party who has never been in the possession of land, for the recovery of which he brings his action, can recover only upon the strength of his own title.

3. This land, while owned by the United States, was public land, within the meaning of the act of 1866, ( U. S. Rev. Stat., § 2477,) which provides that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

4. Quere: Did not the United States recognize this statute as operating as a grant, and in the sale of this land did they intend to convey a right to disturb the railroad company in the use of their road-bed?

5. Quere: If the United States were a private owner, and this railroad was constructed without objection, would a subsequent purchaser with notice, have the right to demand compensation from the company for their use of the road-bed?

6. Under Chapter LXIII., Section 83 of General Statutes, permission to a railroad corporation to enter upon the construction of their highway without previous compensation, may be given by the owner without receiving the notice prescribed in Section 75; and under the circumstances of this case, such permission will be presumed, and the United States and their vendee estopped from afterwards denying it.

Before THOMSON, J., Beaufort, November, 1880.

This action was commenced February 5th, 1878, by William J. Verdier, against the defendant corporation, for the recovery of real property, and damages for its detention. The opinion states the case as fully as does the brief. No grounds of appeal are given.

Messrs. W. J. Verdier and J. D. Pope, for appellants.

Mr. William Elliott, contra.

The opinion of the court was delivered by

MCGOWAN, A. J.

This action was brought to recover possession of a strip of land used by defendant corporation as a road-bed in operating their railroad. In 1857 the Port Royal Railroad Company was chartered by the state “for the purpose of establishing a communication by railroad from the waters of Port Royal harbor, in the neighborhood of Beaufort, to some point on the Savannah river.” 12 Stat. 564. The charter was afterwards amended, and the time for the completion of the road extended.

It does not appear who owned the strip of land prior to 1863, but it is conceded that it had been previously granted, and had been the private property of some one, and about that time the title became vested in the United States government under the operation of the direct tax acts of congress, passed during the war. 12 U. S. Stat. 422.

While the land was owned by the United States government, sometime in 1870, the defendant corporation entered upon the land and took possession of so much thereof as was necessary and had been authorized by the charter, to lay the track of their railroad. They finished their road over it in 1871, and are still in possession, using it as their tract, and claim that as against the plaintiff, certainly they have acquired the right of way therein.

In 1876, the defendants being in possession and operating their road over said strip, the plaintiff, with knowledge of that fact, received a conveyance from the United States government of the tract of land through which it runs, and claiming that his deed gave him title to all the land within its limits, commenced this action February 5th, 1878, to recover the same from the defendant corporation. The case was tried before Judge Thomson, who, without assigning any reason therefor, granted a non-suit. The plaintiff filed no specific exceptions to the order of non-suit, but appeals generally therefrom to this court.

The only question is whether the non-suit was improperly granted. Being an action for a strip of land, of which the plaintiff never had actual possession, nor was evicted therefrom, he must recover it, if at all, upon the strength of his own title, and not the weakness of that of the defendant. He must show complete chain of title back to the original grantor, or possession long enough to presume a grant or give title, or that plaintiff and defendant claim from a common source, and that his title is better than that of defendant. In proving his case the plaintiff did not go back of the conveyance of the government to himself, and, therefore, he failed to show perfect title in himself either by chain to the original grantee or by possession for a period long enough to give title.

The only question then remaining is whether it appeared that the defendant as well as the plaintiff claimed under the government, and that plaintiff's claim was better than that of defendant. Upon this issue the onus was upon the plaintiff, and, until the necessary proof was made, it was not incumbent upon the company to do more than stand upon their possession. If that were obtained in any other manner than from the government, the principle indicated was not applicable to the case, and in order to recover it was necessary for the plaintiff to prove title in himself. It does not seem to be perfectly clear that the company entered under the government. It is certain that no written connection was shown, and, from all that appears, it is possible that the company claimed in some way other than from the government.

But, as the company built and located their road in 1870, while the government owned the land, let us assume that this fact created such a relation between them and the government as to authorize the application of the rule in regard to tracing title to a common source, and inquire how the matter stands in that aspect. The plaintiff insists that he purchased land and received a conveyance with certain metes and bounds, which include the strip sued for, and that his title to that is as good as to any other portion of the land; that the right of way in the land was never acquired by the company, which could be done only by condemnation of the land according to law, or by the assent, expressed or implied, of the owner. The plaintiff received conveyance in 1876, from the United States government. There is no copy in “the case,” and we are not informed of its precise terms, or whether it makes any reference to the fact of the railroad running through the land conveyed; but we assume that it was a quit-claim deed or grant in the usual form, conveying lands by metes and bounds, which include the slip in controversy, and we take it as clear that the plaintiff can have no higher right than his vendor had at the time of the conveyance.

If the land through which the track runs had not been conveyed to the plaintiff, could the government in an action recover this tract from the company? If not, the plaintiff, holding under the government, cannot. There was no evidence that the land had been condemned in the manner prescribed by law, or that the...