Williams v. Atlantic Coast Line R. Co.

• Decision Date: 15 January 1927
• Docket Number: No. 2550.,2550.
• Citation: 17 F.2d 17
• Parties: WILLIAMS, Mayor, et al. v. ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

17 F.2d 17 (1927)

WILLIAMS, Mayor, et al. v. ATLANTIC COAST LINE R. CO.

No. 2550.

Circuit Court of Appeals, Fourth Circuit.

January 15, 1927.

A. F. Woods, of Marion, S. C., for appellants.

M. C. Woods, of Marion, S. C., and Henry E. Davis, of Florence, S. C. (Thomas W. Davis, of Wilmington, N. C., on the brief), for appellee.

Before ROSE and PARKER, Circuit Judges, and McCLINTIC, District Judge.

PARKER, Circuit Judge.

This is an appeal from an order granting an injunction. The complainant in the court below was the Atlantic Coast Line Railroad Company, a corporation of the state of Virginia, and the defendant was the town of Mullins, S. C. The jurisdiction of the court was based on diversity of citizenship. The bill prayed that the town be enjoined from laying hard-surface paving upon certain portions of streets alleged to be within the right of way of the railroad. The town filed answer, denying the title of the railroad to the land in controversy, setting up title in itself by prescription, adverse possession, abandonment, and estoppel, and asserting that the railroad had no such possession of the locus in quo as would enable it to maintain a bill in equity for injunctive relief.

The learned District Judge exhaustively reviewed and analyzed the evidence in an able opinion filed in the cause, and it is not necessary that we repeat here what was so well said by him. The facts necessary to an understanding of the points involved, briefly stated, are as follows:

The complainant railroad is the successor in interest and vested with all the rights acquired by the Manchester & Wilmington Railroad Company, which, in the year 1852, constructed a line of railway through the territory now embraced by the town of Mullins. Section 17 of the charter of that company provided that, in the absence of any contract signed by the owner, it should be presumed that the land upon which the railroad should be constructed, together with a space of 65 feet on each side of the center of the road, had been granted to the company. Section 18 provided that all lands within 65 feet of the center of the road, not theretofore granted to any person nor appropriated by law to the use of the state, should vest in the company as soon as the line of road should be definitely laid out, and that any grant thereafter covering such lands should be void.

In October, 1849, one William S. Mullins executed and delivered to the railroad company a deed, authorizing it to enter upon any tract of land belonging to him through which it might desire to construct its road, and to use, occupy, and possess land adjacent to its road, not exceeding 130 feet in width. This deed, however, did not describe any tract of land as owned by the grantor, and there is no competent evidence showing that he ever owned any part of the land in controversy. As stated above, the railroad was constructed in 1852, and since that time the complainant railroad and its predecessors in title have claimed, possessed, occupied, and exercised dominion over a right of way through the town 130 feet in width.

The portions of streets in dispute are South Front street, lying for two blocks on the southerly edge of the right of way between Smith and Park streets; two small triangular portions of North Front street, one near Smith street and the other near Park street; and the portion of Smith street which is supposed to cross the right of way from the north and end at South Front street. The evidence is that these portions of streets have been used as such for 40 years or more. When the railroad was constructed in 1852, the company placed its station, pump, woodrack, etc., on the right of way between what are now Smith and Park streets, and, in order to gain access to the station, and for other purposes, the public began to travel over the portions of the right of way now in dispute. In 1872 the town of Mullins was chartered, and thereafter streets were laid out and worked by the town. The public continued to travel over the portions of the right of way now in dispute, and the town has worked them as a part of its streets from time to time, but no permanent or substantial improvements have been placed thereon. Nothing has been done which has interfered with the railroad's use of its right of way, and from time to time, with certain unimportant exceptions, as the town has desired to put down or erect permanent structures such as sewer lines, water mains, and a watchman's both on the right of way, it has sought and obtained the permission of the railroad. There was no substantial evidence that the use made by the public of the right of way had been other than permissive, and there was no evidence whatever that the town had erected any structure of a permanent nature on the disputed area, or taken exclusive possession of any part thereof under claim of right. Smith street, as a street of the town, terminated at the right of way, and, while the public has for years used a crossing at Smith street to reach the disputed portion of South Front street, there is no evidence that this has been anything more than a permissive user in all respects similar to the use made of South Front street.

We agree with appellant that, in deciding questions affecting the title to the land in controversy, we must apply the law of the state of South Carolina, where the land is situate. Burdine v. Southern Public Utilities Co. (C. C. A. 4th) 11 F.(2d) 29; U. S. v. Fox, 94 U. S. 315, 24 L. Ed. 192. But, when we apply this law to the facts of the case, we are satisfied that the District Judge was correct in holding that the railroad had title to the portions of the right of way in controversy, and that the town had not acquired the right to use them as streets by prescription or otherwise.

The railroad claims title under the deed from W. S. Mullins, which grants a right of way of a width not exceeding 130 feet, and the proof shows that it has taken and possessed the full 130 feet. The town contends, however, that this deed does not describe any particular land, and that there is no showing that Mullins ever owned the land in controversy. Its contention, therefore, is that, as there is no showing that Mullins ever had title, the deed cannot be held to convey title, and that it is not even color of title, as it does not embrace in terms the land in controversy. We agree with the town that, in the absence of a showing that Mullins had title to the land in controversy, the deed offered in evidence could not be held to convey title, and we also agree that it does not sufficiently describe this land to constitute color of title thereto. This does not help the town, however; for, if the deed be disregarded, the railroad can rely upon the presumption of a grant of a 130-foot right of way raised by sections 17 and 18 of the charter of the Manchester & Wilmington Railroad, mentioned above.

The town contends that plaintiff cannot rely upon this presumption, because it relies upon the deed from Mullins, and the presumption of grant arises only "in the absence of any contract * * * signed by the owner," with the burden upon the railroad to establish the absence of such contract. A. C. L. R. R. v. Dawes, 103 S. C. 507, 88 S. E. 286; C. & N. W. Ry. Co. v. Ford, 105 S. C. 80, 89 S. E. 809; Sou. Ry. Co. v. Com'rs of Public Works (C. C. A. 4th) 246 F. 383. But if Mullins was the owner of the land in controversy, so that the deed from him would defeat the statutory presumption, then the deed from him conveyed title, and the presumption is not needed. If he was not the owner, the deed from him could not interfere with the presumption. It appears that the railroad claimed the disputed portion of the right of way in good faith under the deed, and there is no evidence or suggestion that it had any other contract relating thereto. We think, therefore, that in holding the deed ineffectual to pass title, because not shown to have relation to the land, we should not hesitate to give effect to the presumption which arises in the absence of contract. The trial judge was correct, therefore, in holding that at the points in question the railroad had acquired title to a right of way 130 feet in width, which covers the portions of the streets in controversy.

The next question is whether the town has acquired right by prescription to the portions of the right of way embraced within the streets. This question must also be answered against the town, for it seems to be settled by the South Carolina decisions that a city or town cannot acquire the right to a street over the right of way of a railway company by prescription. Blume v. Southern Ry. Co., 85 S. C. 440, 67 S. E. 546; Sanders v. Southern Ry. Co., 97 S. C. 423, 81 S. E. 786; Matthews v. Seaboard Air Line Ry., 67 S. C. 499, 46 S. E. 335, 65 L. R. A. 286; A. C. L. R. Co. v. Searson (S. C.) 135 S. E. 567.

Blume v. Southern Ry. Co., supra, was an action instituted by an abutting property owner to recover damages for the closing of a street. The question presented was whether the public had acquired by prescription the right to use a street over defendant's right of way. In denying the right, the court said:

"Prescription rests in the presumption of a grant or dedication, and, as the railroad company has no power either to grant or dedicate its right of way for any other than the purpose for which it was acquired, the presumption cannot arise; and...