141 S.E. 688 | S.C. | 1927
Lead Opinion
October 28, 1927. The opinion of the Court was delivered by For the reasons therein assigned, the decree of his Honor, Judge Dennis, which will be reported, is affirmed.
MR. CHIEF JUSTICE WATTS and MR. JUSTICE STABLER concur.
Dissenting Opinion
I think that the decree of his Honor, Judge Dennis, should be reversed, and the report of the Master confirmed; and therefore dissent from the contrary conclusion announced in the opinion of Mr. Justice Blease, for the reasons which follow.
The action was commenced by the service of summons and complaint on August 27, 1924, and is one seeking permanently to enjoin the erection of a building, to be used as a garage and filling station, upon property alleged to be a part of the right of way of the Atlantic Coast Line Railroad Company.
The defendant answered, denying the principal allegations of the complaint, and alleging, as defenses, adverse possession, estoppel, laches, and non-user on the part of plaintiff.
On motion duly noticed, his Honor, Judge Dennis, on the 25th day of October, 1924, ordered that all issues arising herein, save and except the issue of estoppel, he referred to the Master of Chesterfield County, to take the testimony and report to the Court his conclusions on all issues of law and fact. The issue of estoppel was ordered tried by a jury (which has not been done).
On March 30, 1925, the Master filed his report, in which he found that the land in question was owned by the plaintiff *497 as a right of way; that plaintiff was in possession of same; that the defendant was attempting to invade plaintiff's possession of the premises, and recommended that defendant be permanently enjoined from so doing.
Defendant duly excepted to the report of the Master, and, after hearing the exceptions to such report, his Honor, Judge Dennis, by his decree filed July 28, 1925, held, in substance, that neither plaintiff nor defendant had proven any adverse possession; that plaintiff had a right of wayunder its charter 100 feet wide on each side of the railroadmeasured from the center of the track, on what was the old Cheraw Coal Fields or Cheraw Salisbury Railroad Company (now the north leg of the Atlantic Coast Line Railroad Company's Y); but that said right of way did not include the property where Mrs. Baker is building the garage, and reversed the findings of the Master upon this point. The decree of Judge Dennis refuses the permanent injunction, and orders that the complaint be dismissed. From this decree the plaintiff appeals.
The elaborate and most excellent report of J.E. Leppart, Esq., Master, will be incorporated in the report of the case. It gives a full and detailed statement of the facts, which renders it unnecessary for me to repeat them.
In the decree of his Honor, Judge Dennis, which will also be reported, he sustains the findings and conclusions of the Master, except in three particulars: (1) In the admission of the testimony of the witness Godfrey, which is held inadmissible; (2) he holds that there is no evidence tending to show that the railroad company acquired the right of way in any other manner than by its charter; and (3) he holds that the land upon which the encroachment alleged is threatened is not within the right of way of the railroad company. This last he considers "the vital question in this case," to which I entirely agree. I do not consider it necessary to discuss any other point in the appeal, for it is apparent that, if the encroachment is within the charter right *498 of way, as shown in the report of the Master, the plaintiff is entitled to the relief prayed for, unless the defense of estoppel, which his Honor reserved for trial by a jury, should be sustained.
His Honor, Judge Dennis, held:
"I find that the Statutes of North Carolina were properly admitted in evidence and show that a right of way of 100 feet from the center of each side was the right of way of the Cheraw Salisbury Railroad."
There is no exception to this finding, and it must be taken as a fact that the Cheraw Salisbury Railroad Company acquired a right of way of 100 feet on each side of the railroad, measuring from the center of the track, to which right the Atlantic Coast Line Railroad Company has succeeded. It must be conceded that this measurement mustbe made at right angle to the center of the track, at every point.
There would not be the slightest difficulty in defining the limits of this right of way, if the question was not complicated by the existence of a prior and superior right of way in the Cheraw Darlington Railroad Company.
The situation is peculiar. From the accompanying sketches it will be seen that the Cheraw Darlington Railroad runs practically due north and south at this point. It had acquired a right of way 65 feet on each side of the railroad, measuring from the center of the track, at right angle of course at every point. The Cheraw Salisbury Railroad (formerly known as the Cheraw Coal Fields Railroad), with its right of way of 100 feet on each side of the railroad, measuring from the center of the track, at right angle, of course, at every point, approaches the Cheraw Darlington Railroad from the west, upon a curve, and makes connection with it, at the switch point marked A on the sketch. The lines upon the sketch show the limits of the right of way of the Cheraw Darlington Railroad 55 feet on the east and 65 feet on the west; and also the limits as *499 claimed by the plaintiff, of the right of way of the Cheraw Salisbury Railroad, 100 feet on the south and 100 feet on the north, except where the 100 feet on the north would impinge upon the prior right of way of the Cheraw Darlington Railroad.
I quote from the decree:
"I find that this right of way started from the pointwhere this railroad entered the right of way of the oldCheraw Darlington Railroad, and from that point its right of way began 100 feet wide, and that the right of way did not extend to include the property of Rachel Baker. The maps, or plats, introduced by the plaintiff show that on the south side of the railroad its right of way stopped where it entered that of the Cheraw Darlington Railroad. If the curved line showing a right of way on the north side should be allowed, it seems to me that the line should be extended on the south side to include land on that side of the old Cheraw Darlington right of way. I do not think that it can be contended that the Cheraw Coal Fields Railroad acquired any of the right of way belonging to the old Cheraw Darlington, and I conclude and hold that the starting point of the Cheraw Coal Fields Railroad was at the point where it entered the right of way of the Cheraw Darlington Railroad, and extended no further, and therefore that the property of Rachel Baker, the defendant, was not included in the right of way obtained under the charter."
The vice in the decree of his Honor, Judge Dennis, I think lies in measuring the 100 feet right of way of theCheraw Salisbury Railroad, along the west line of theright of way of the Cheraw Darlington Railroad, instead of at right angle to the center of the track of the Cheraw Salisbury Railroad. There can be no greater reason for adopting the angle selected by his Honor, at the point where the Cheraw Salisbury Railroad enters the right of way of the Cheraw Darlington Railroad, than at any other point on the Cheraw Salisbury Railroad: and it is apparent, by *500 the eye, that, if the acute angle should be adopted at all other points, the right of way would be less than 100 feet on each side of the track.
The plaintiff does not contend that the right of way of the Cheraw Salisbury Railroad extends over any part of the right of way of the Cheraw Darlington Railroad, either north or south of its center line, but it contends that it is entitled to 100 feet on each side of the center of its track, down to the switch point A, measured at right angle, except where such right of way would impinge upon the prior right of way of the Cheraw Darlington Railroad. The result would be that on the south side of the Cheraw Salisbury Railroad, its right of way would terminate at the west line of the right of way of the Cheraw Darlington Railroad, but that, on the north side, it would include all of the land 100 feet on each side of the center of the track, down to the switch point A, measured at right angle, except that part included within the right of way of the Cheraw Darlington Railroad. As to this contention I have no doubt but that the plaintiff is right, and, if so, the encroachment, indicated by the letter X, is within the limits of the right of way of the plaintiff.
His Honor held that the right of way of the Cheraw Salisbury Railroad was limited on both sides by the west line of the right of way of the Cheraw Darlington Railroad. It is obvious that there is a part of the right of way on the north side, lying between the right of way line of the Cheraw Darlington Railroad and the limit of the 100 foot line, which extends as far as the point W, 100 feet from the point A, to which the plaintiff is entitled.
As a matter of fact (not involved in this controversy), the right of way of the Cheraw Salisbury Railroad would include also a small triangle on the east of the Cheraw Darlington Railroad, beginning at a point 65 feet from the switch point A: thence at right angle with the center of the track 35 feet, to a point on the east side corresponding with *501 the point W on the west; thence with the right of way line of the Cheraw Salisbury Railroad to where it would touch the right of way of the Cheraw Darlington Railroad; and thence with the right of way line of that railroad, to the beginning.
For the purpose of demonstration I append three sketches, substantially corresponding with the plats in evidence.
The following sketch No. 1 shows what the right of way of the Cheraw Salisbury Railroad would be had there been no complication involving the right of way of the Cheraw Darlington Railroad:
[EDITORS' NOTE: GRAPH IS ELECTRONICALLY NON-TRANSFERRABLE.] *502
The following sketch No. 2 shows the right of way of the Cheraw Darlington Railroad without reference to that of the Cheraw Salisbury Railroad:
[EDITORS' NOTE: GRAPH IS ELECTRONICALLY NON-TRANSFERRABLE.]
The following sketch No. 3 shows the right of way of the Cheraw Salisbury Railroad as affected by the prior right of way of the Cheraw Darlington Railroad:
[EDITORS' NOTE: GRAPH IS ELECTRONICALLY NON-TRANSFERRABLE.] *503
The right of way of the Cheraw Salisbury Railroad, of 100 feet on each side of the railroad, measuring, at every point, at right angle to the center of the track, is perfectlygood against all the world, except the Cheraw DarlingtonRailroad Company. As to that company, the right of way of the Cheraw Salisbury Railroad is overlaid by the 65 feet right of way of the Cheraw Darlington Railroad, leaving the remainder unaffected by the latter right of way or by the claims of the defendant or of any one else; thatremainder is the part upon which the alleged encroachmenthas been made.
It thus appears quite clearly to me that the alleged encroachment is, beyond question, upon a part of the right of way of the Cheraw Salisbury Railroad. Let these sketches be incorporated in the report of the case.
Dissenting Opinion
I respectfully and earnestly submit that the leading opinion has misapprehended the point in the case; namely, that the railroad company, succeeding to the rights of the Cheraw Salisbury Railroad, is entitled to a right of way of 100 feet, measuring at right angle from the center of the track, at the switchpoint, which will extend beyond the 65 feet right of way of the Cheraw Darlington Railroad, and will include the land upon which the defendant's garage is located. The railroad company having acquired the rights of both of these companies, there is no conflict between the respective rights of way; and it follows that, at the switchpoint, the railroad company has a right of way of 100 feet on each side of the center of the track, measuring at right angle, which necessarily will include the disputed area.
I think therefore, that the petition should be granted. *504
Addendum
