Charleston & Western Car. Ry. Co. v. Reynolds

Railway Reynolds. v. Term, April 1904.

ward. Is it at all probable that the train was then moving an at obviously dangerous rate oí speed? The time was night and there were no but the lights, was a place regular station, presumably affording safe place, landing and the interval between the of starting the train and the act of alighting have may been brief so as to an justify inference that the train had not passed the station grounds acquired a dangerous speed. Moreover, plaintiff, unaware speed of the train no and seeing danger, was invited to alight conductor, who was familiar with the situation. May not the plaintiff have reasonably assumed, under these cir- cumstances, that the conductor would not invite him to alight, if was manifestly dangerous to do so?

We not do think the facts stated so conclusively show con- tributory negligence not to require submission to the jury.

The judgment of the Circuit Court is reversed.

CHARLESTON & WESTERN CAR. RY. CO. v. REYNOLDS. Right

1. Way. Entry Condemnation — oe survey on land for — entry location is not for location.

2. Ibid. —Ibid.—Life Tenant —Remaindermen—Limitation Ac- tions. —Deed railroad life way tenant for only conveys held, what interest rights he but remaindermen, no only begins and statute against to run remaindermen death at of life tenant. Mr. Woods thinks the Ry., cases C., Tutt v. Justice 28

Ry. Scott, C., Ry., overruled Cureton v. 59 S. 3. Limitation here, Estates —Remainders.—Under the will chil- dren of life tenant in esse at death of testator took as remaindermen. ¿,. Right 4. Condemnation — Way. —Remaindermen who are minors conveys when life tenant may to railroad company, against to their lands assessed c&mpany railroad taking, tenant, after death of life year and after more one ttian completion road, by procedure Pleas, in Court of Common

31—69 Report. S. C.

Master’s may order com- if be denied and Court their to by statutory compensation pensation method. assessed Ibid.—Injunction.—When right compensation for to 5 Ibid. — statutory proceeding enj way denied, proper at instance oin is it is to company. of railroad paid Ibid.—Remaindermen.—Compensation to remain- to be 6. Ibid.— conveyed way life contingent interest in for their dermen taking, with interest at time is tenant the valué of interest. Greenwood, Judge, A. special

Before Jos. McCullough, 1903. Affirmed. June, Co. Railway Carolina

Action and Western by Charleston Moore, of Master al. The report B. et against Reynolds J. : issues, is as follows statement omitting it, questions: main case, I there “In as see two compensation? entitled “First —Are the defendants statu- recover entitled to so, are they “Second—If proceedings? tory before settled fact to be

“There are many questions these questions. answering In 1882 facts: I the following find testimony

“From the Reynolds Bennett death, the time of his and up and described land mentioned tract of owner fee 1883, He died July tract.’ ‘the as McGee complaint F. son, B. Rey- to his lands a the said devising will leaving F. said B. the same during and enjoy use have, ‘to nolds, death, his children or life, at his natural Reynolds’ B. F. Reynolds, at that time.’ bemay living children who lands at resided on said children, son, of his some with the lands till and his father lived the death of the time of R. Briggs, B. Nannie Reynolds, 1901. May he died J. T. and W. Reynolds Minnie Eva Reynolds, B. Reynolds, F. B. F. children of herein, only were defendants Reynolds, at and were living Bennett Reynolds, son Reynolds, is whom youngest B. F. Reynolds, date of death old. old, years, the oldest is forty years twenty-four now Carolina Rail- and Western of the Charleston line The main Railway April Term, runs through lands, Company but i'ts track spur

to the Grendel Mills is located on other lands than McGee tract (hardy touching McGee tract at one point).

Greenwood, Laurens Spartanburg now Railway owned and operated Charleston and Western Carolina Company of its part line. The said Green- wood, Laurens Spartanburg Railway Company having been consolidated into the Port Royal Western Carolina Railway Company, road whose was afterwards purchased-by the Charleston and Western Carolina Railway Company.

The Greenwood, Laurens Com- Spartanburg Railway pany entered the said McGee tract 1883, of land during the lifetime of Bennett Reynolds, owner, its for the purpose of and surveying -its locating road thereon. Several prelim- inary and location out surveys of the town of Greenwood north towards were Laurens made prior to the death of Ben- nett Reynolds. these, Two of least, at passed through McGee tract of land, and and location preliminary survey said through McGee tract of land was at changed least one time. The Greenwood, and Laurens Spartanburg Railway Company obtained no or conveyance of from Ben- way nett In Reynolds. fact, testimony shows that he was a old man very at the time—about eighty-two years old—weak in mind and incapable attending to business. On October 13, 1883, before work was done any construction, B. P. life

Reynolds (the made tenant) a. deed of a conveyance feet way through wide said McGee tract of lands to the Greenwood, and Laurens Spartanburg Railway n Company. Under this Greenwood, deed said Laurens and Spartanburg Railway entered the said Company lands and constructed their road thereon. Grading begun ten of Greenwood, river, miles north at in October, 1883, and was not completed through said McGee tract till the of 1884. No notice spring entry construction was n served the children of B. upon P. Reynolds. The Green- wood, Laurens Spartanburg Railway used the Company said right way until said continuously Railway Reynolds. Report.

Master’s S. C. Rail- consolidated Carolina into Port Western Royal purchased by whose road was afterward Company, Charleston Company. and Western Carolina succes- Charleston and Railway Company, Western Carolina Greenwood, in title and Spartanburg sors Laurens now use the Railway Company, right way tenant, life used it since their B. F. purchase. Reynolds, 1901, 30, for compensa- May statutory proceedings died 1901, the de- tion and were October begun re- Turner, as other than Clerk fendants, petitioners—the land, in fee of the McGee tract of maindermen —as owners Bennett under and virtue of the will of grand-father, S., sections 2187- R. to previous referring “Section 2195, inclusive, herein contained shall is as : ‘Nothing follows lands for pur- construed to prevent entry upon any the owner location; and if in case poses survey any requiring lands shall person corporation, permit enter the construc- Same, over the to' right way the said compensation, tion of the without highway previous shall have been have the after the highway owner shall for an and to constructed to demand compensation, petition hereinafter directed: assessment of the manner same months Provided, shall be filed within twelve petition Such his or shall have been completed through after the highway loca- survey her lands.’ The for entry purpose lifetime Ben- tion, instance, made during above nett The railroad company, Reynolds. enter for the of sur- had the to right purpose section quoted, But Bennett before con- died Reynolds location. vey and under a deed B. F. Reynolds begun, by struction was railroad for company right way to the tenant) (life the road was built. No notices were the premises, through the railroad nor did the remaindermen served on on the Does company. serve railroad any the remaindermen B. F. bind the remaindermen for a Reynolds this deed the lifetime F. ? I of B. during Reynolds than time longer Railway April Term, 1904.

think not. Section I., art. Constitution, provides ‘that private shall not be taken úse, property for private without the consent nor owner, use, for public without just first made being therefor.’ In Cúreton v. R. R. Co., 59 C., it that remaindermen are such owners fall within the protection this provision of the Constitution. Also, section of the Code is as follows: ‘No estate remainder, whether vested or shall contingent, defeated by deed of feoffment with of seizin.’ B. livery R. Reynolds, it to seems could me, grant or no convey greater estate had, than he to wit: A life 'estate, as in the case cited above, upon in of falling estate, the'life the remainder- men could an bring action for compensation.

“I find, therefore, that the defendants, other than T. Clerk C. Turner, have the right to compensation for strip land through lands used on main line of the plain- tiff’s but road, no right to compensation on account of its spur track to Grendel since Mills, that track is built on lands other than the McGee tract.

“The next question is, are the defendant en- petitioners titled to recover under statutory proceedings? plaintiff denied having their right to compensation. It seems to me that not. To use the used in language Co. v. Ridlehuber, the late Chief Justice Mclver, ‘the statute seems to proceed assumption either that the compensation has been conceded has been determined in already some other In the way.’ same case it is held, ‘that the provisions of the statute law of this State as Stat., way railroads (Gen.

secs. only 1550-1561,) govern manner of claiming right of the mode which the amount of compen- ascertained, sation is to be where the

is conceded or 'has been already determined. But the statute law prescribed has no mode by which disputed right the land owner to for compensation the land over which railroad has been can constructed be determined. The jury to determine empanelled the amount of compensation not C.S. Decree.

Circuit in- to' competent over officer who is by any being presided to determine are not law, expected struct them in matters of appeal and on compensation, of the land owner to right consider can only tribunal from their finding, appellate Auld See, also, the jury.’ the matters passed upon by C., and S. C.; R., v. R. South R. R. Cureton Co., Burton, 63 C. R. R. Co. v. Bound defendants, other herein that determined “Having T. than C. Turna*, Clerk lands, their land through main line strip

account of the railroad company, plaintiff used appropriated and statu- their recover under cannot but that said defendants That the peti- I conclude: it follows tory proceedings, and restrained enjoined be perpetually tioners should without statutory proceedings, further under going an action however, against fe> to their right bring prejudice, for Company Carolina Railway the Charleston Western due the amount of of ascertaining purpose of land strip for company the said them railroad McGee tract —used their land—the through line road main -for its the said railroad way by compensa- of such recovery lands, and through entitled to.” are tion as they Judge the Circuit report, to- excepted

Both sides decree: filed following defendants, is as to' rights here controversy

“The hands o'f the at the heirs, to compensation the Reynolds is now plaintiff for a certain plaintiff tract of the as the McGee known land of theirs over using these: Sr., briefly The facts estate. Reynolds, Bennett question. the land owned Sr., Reynolds, Bennett Railway Company, Greenwood, ‘Spartanburg Laurens Bennett Reynolds, of the said part on the objection without dispute of land strip into possession Sr., went railroad thereon. its locating surveying the purpose months within person filed by twejve petition No Railway Reynolds. April Term,

after the road was completed the said lands. The through said Bennett Sr., 3, Reynolds, died on July leaving inwill he devised the lands to his B. question son, in P. have, Reynolds, ‘to use and the same B. said enjoy during P. Reynolds’ natural at his death to his children or their life, children who bemay at that time.’ living

“The work of across the said ‘constructing’ said road land not until after begun the death of the said Bennett Reynolds, 13, 1883, On Sr. October the railway company obtained B. from P. tenant, the life Reynolds, a deed whereby the said B. P. Reynolds, consideration the matters therein alleged, to the said conveyed railway company inway question, thereupon said railway company entered the said lands upon and constructed its road-bed thereon. The .plaintiff its successor in title. It appears from that the road-bed testimony was not com- pleted through the McGee tract tract (being question) until the of 1884. spring No notice of entry construc- tion was served upon children B. F. Reynolds, life tenant. The said has been used continuously ever since by plaintiff and its in title. predecessors 30, 1901,

“On May B. P. died, the life Reynolds, tenant, and the statutory proceedings for compensation were begun defendants, other than the defendant, Turner, T. C. clerk Court, of the on October they claiming 1901— remaindermen under that clause of the will of Bennett Rey- nolds, Sr., above set forth, and now-as in fee owners of the McGee tract. Honor, His Judge directed the Townsend, of a empanelling notice jury, drawing jury served duly upon plaintiff. Thereupon plaintiff instituted its action for the purpose of further enjoining any under the said steps special proceedings, upon grounds that the defendants had no or interest in the said right for the reason set way, forth It complaint. will be observed to the by referring allegations of the complaint that not ask plaintiff does proceedings enjoined that its special ground liability had

Circuit Decree. S. C. never been admitted or a adjudicated court competent jurisdiction. true, It is complaint the state facts does which if true would entitle the plaintiff for, to the injunction prayed upon the that the ground defendants have no interest in now the said but, I property; as construe the tire complaint, plain- tiff has not as a alleged specific injunction for an the ground fact that the defendants had no institute proceed- in ings of an advance adjudication of its a liability by legal court of competent jurisdiction, or an'admission its part liability. On in plaintiff asks third contrary, its of relief in prayer case the Court its should overrule contention, and the be dismissed complaint grounds therein ‘that it urged, this action advice and may direction this Court as to the manner and method given and extent in which and to shall which assessment be made,’ etc.

“On October his Honor, Judge Gage, upon the verified reading and on of counsel for complaint, motion the plaintiff, an order required defendants show cause before him on 25, 1901, October why temporary injunction not meantime en- should and in the granted, joining defendants ‘from further or proceeding taking action whatever under the referred to proceedings * * * said complaint until the final determination of issues in this action

“By counsel there was no- of this agreement hearing 25th, matter on and the order con- October restraining tinued full and effect until the final on the hearing force merits. meantime,

“In consent counsel, consent order Moore, the case taken, referring of reference was to W. J. to take the County, testimony master for Greenwood fact. In accordance with conclusions law report references, order, master held took this testimony 28, 1903, record, and on filed his April report, found states ‘In fully fairly says: facts, (cid:127)in which he it, there are 'two main case, I First— questions: see April Term, Are the entitled to compensation? defendants Second—If are ?’ so, entitled to- under recover statutory proceedings they- affirmative, He answers the first in the and the sec- question in the ond negative.

“The to so much of the master’s plaintiff excepts report as holds that the defendants -entitled to compensation, ar-e and the defendants to so much as except holds they not to recover had proceedings entitled instituted. heirs

“Did master err in holding Reynolds con- were entitled to compensation? railway tends that are fo-rthe not entitled to fol- reasons, I from-the lowing complaint: which gather That this to Bennett “(a) originally belonged property Sr.; that he in at the time the Reynolds, possession was Greenwood, and Company Spartanburg Railway Laurens went in fo-rthe into of the o-fland possession dispute strip railroad of and its purpose surveying, constructing locating the thereon, Sr., per- and said Bennett Reynolds, having the having mitted aforesaid acts to be and no done, petition after the road been filed months within twelve by any person lands, the railway the the title to was said completed through There became world. against company thereby perfect Sr., had if the fact Bennett Reynolds, no doubt of Rail- Greenwood, Spartanburg permitted and Laurens into title, to go plaintiff’s predecessors way Company, survey- purpose the lands in for the dispute possession and no thereon, railroad its locating constructing ing, after months within twelve filed by any person was petition lands, the the said railway through was completed road of way. á title to said right good would Stats, But I concur with of 1902.) 2196 Rev. sec. (See of construct- fact work in his finding master not begun land question road across the the said ing Bennett the said Reynolds, Sr. until after death had the the railway company quoted the section above Under of ‘survey fo-rthe purpose lands said to enter S. C. Circuit Decree. from and I find that the acts done testimony location/ railway company lifetime Bennett during Rey- Sr., stakes, to wit: nolds, surveying setting only the purpose and location/ ‘survey

“(b) second in the as to ground urged complaint, is, why defendants not entitled to compensation, Sr., after the death of the said Bennett for the Reynolds, its purpose further title to the protecting securing land, said strip took a deed from B. railway company F. Reynolds, tenant, life said B. which the F. Rey- nolds to the said conveyed fee railway company simple to the deed said and that the and its premises, pre- plaintiff deed, decessors in title have been under the said possession therefore, world, the same claiming and, to the adversely holds said ‘freed and all lands discharged alleged claims and all defendants other This persons.’ posi- tion is overruled, for the reason that the deed of B. F. Rey- tenant, the life nolds, could no interest in convey greater true, than premises he had. It is that the said convey- ance made the entry railway company purpose of construction a and forever peaceable lawful entry, saved it from in the of a judged being light trespasser. Were heirs in the an Reynolds to action to bring case the said that it eject a railway company, upon theory defense, a trespasser, deed would constitute perfect said but the said deed not have could the effect of to conveying the interest of the railway company remaindermen under Sr., of the Bennett will said who would take Reynolds, tenant, B. under F. the life under but the will Reynolds, of Sr.; so, Bennett Reynolds, this no or being deed con- tenant, of B. F. the life tract divest Reynolds, could them of said their interest under the will. in the

“(c) plaintiff alleges, place, third that the de- fendants, other than the defendant, Turner, T. C. acquired a remainder said only interest McGee land, therefore, of and that not they, tract did have any such to subject interest as was condemnation at the time the road- Railway v. April Term, 1904. not now entitled to was located and and are constructed,

bed have be- assessment made or damages of cause of the land said Green- possession strip of wood, its or Railway Spartanburg Company, Laurens in interest. successors

“It whether de- is to in this case consider necessary clause the will fendants, heirs, under that of Reynolds of Bennett and which Sr., property, Reynolds, affecting a is take remaindermen or forth, above set as contingent vested that but defeasible interest. To sustain view their see one, interest a vested but the cases is defeasible SI 277; Rivers Rich. v. Boykins Boykins, Fripp, Eq., event, In either satisfied that C., 530. I am entitled to See Cureton Com- compensation. Railway pany, The fourth reason heirs are not

“(d) Reynolds why entitled in the 'that it complaint, stated is compensation, was their full of the fact duty, knowledge having Greenwood, Spartanburg Company Laurens land for the had taken possession strip purpose thereon, its road locating surveying immediately assessment their of their proceedings instituted thereof, reason that their or compensation by term the com- failure so forthe of twelve months from to do the said road constitutes now bar complete pletion It of law their recognized principle well alleged rights. prescription do the statutes limitation doctrine accrues. not run until their action persons against said will of Had remaindermen under the Bennett Rey- nolds, Sr., instituted condemnation proceedings statute, I think that the have had would railway defense, (cid:127)a in that could claim said action on perfect remaindermen It could the said part premature. entitled as not be ascertained who would be remaindermen and, life until the tenant, under the said will death of the could tell would be entitled to the Court not who therefore, Poole, until that time. Thomas See S. C.

Circuit Decree. C., As to what been the might effect rail- the had at that time instituted its under proceedings statute, the the life tenant all in making esse parties the parties to- said it is here to proceedings, unnecessary is, consider. The fact not they did avail themselves of this remedy. The fifth

“(e) in the is that ground the alleged complaint Reynolds heirs are now insti- estopped by laches the tuting If, proceedings. law, as matter of had they no right to maintain their action until the death of the life tenant, Ias have held, then it is difficult to conceive already how could be they their failure to that -estopped do- which under the law not All they were do. permitted to exceptions, therefore, of the to-so much of the mas- plaintiff ter’s report error in allege tire master that concluding defendants, defendant, Turner, other T. than C. were entitled to compensation, are overruled and find- hereby fact and ings conclusions on law the of master part with reference are thereto affirmed. hereby

“2. Did the master err that defendant holding peti- tioners could not recover under the th-eir statutory which had instituted ? cases have proceeding's Several been decided Court of this Supreme construing State statutes; but, similar this or so-far as I can no-case find, lays down pursued after it decided that practice finally are entitled to com- petitioners special proceeding In the case of pensation. Mauldin, Greenville v. 438, it that is decided where condemnation page proceedings have been of an adjudica- instituted advance admission or tion of on the o-fthe in the liability part respondent special enjoin petitioner from proceedings proceeding statutory remedy complaint alleges its had never admitted such respondent liability, had never been a court of liability adjudicated by competent and to- facts are allegation sustain jurisdiction, alleged, holds demurrer to complaint facts the Court but, sustain denial o-f plaintiff’s liability; insufficient Railway Rsynouds. April Term, hand, the other liable, show that the is that the plaintiff

complaint and the will be dismissed petitioner allowed to under his proceed to1have his as- statutory remedy damages sessed. If this be then it to* that where facts so, seems me are in a alleged complaint reason of alone the which plain- tiff denies liability, this, upon strength petitioner in condemnation enjoined from further proceedings-is taking thereunder until steps to condemnation is right adjudi- cated, by a court and the jurisdiction; Court deter- having mines that the plaintiff’s insufficient, and that grounds are entitled case compensation, defendants becomes case, assimilated to the Mauldin closely Court, in which after dismissing complaint, permitted petitioner to proceed to have his assessed under the damages statutory instance, in the first proceeding. petitioners, had assume, if as a matter of entitled to law were compensation, that the not would railway compi'ny dispute this right. were not to assume that They bound railway company would its deny liability, and legal acting upon refrain assumption from instituting only proceeding law authorizes cases like to assess this. Acting, upon what to1be reasonable therefore, appeared instituted their proper assumption, the petitioners pro- under statute. A ceedings was drawn author- jury ized. at this railway state comes company Just T am not liable in for the says, reason damages, alleged 'Your authorized complaint. my jury special statute have no to1 and the pass question, matter have to here until court of stop competent juris- will was, therefore, diction does It pass upon my liability.’ legal to institute its action railway proper in the condemnation enjoin proceedings jury pass- right to dam- ing upon question petitioner’s legal Therefore, until adjudicated. Judge Gage ages T to the opinion injunction am holding, should continue until and these this action clerk proceedings

Argument of C. Counsel. tried, or until the (italics further order of the.Court’ mine). tried,

“This is that the action has been and it opinion my in the petitioners are entitled to special compen- proceedings ; that sation herein make its plaintiff good has failed in its it is liable. The not charge complaint legally be, order for and is dis- should temporary injunction hereby, solved. This there no so, longer is anything being have their under the assessed petitioners words, instituted them. In other special proceedings effect, heretofore obtained injunction enjoined, only in condemnation from passing jury proceedings has, of the legal plaintiff. injunction therefore, liability officio; served its the Court did not purpose, is functus to, not, and in could my opinion enjoin taking purport in that one to wit: the only step proceeding, adjudication on the of the question legal part plaintiff. liability That been the Court in mean- enjoined, and step having liable, while determined that the is having railway company in the condemnation is tri- jury proceedings only bunal-authorized to-assess the damages. lawby is, ordered, therefore,

“It exceptions de- much fendants to so of the master’s as recommends report under the perpetually enjoined proceeding be, them, condemnation instituted and the proceedings sustained, is same to that extent the master is hereby, therefore, will, reversed. The case proceed just though never injunction the order for had been temporary obtained.” this decree the Prom plaintiff appeals. J.

Mr. cites: Simpson, appellant, S. Who was the “owner" under terms C., the statute? 430. De- 21 S. took remainders under will here’: 26 S. fendants have lost C.,-450. any right had they may Defendants more than one compensation by waiting year com- after road: Gen 1550, 1551, 1558; C., 426; pletion Stats., 16 S. 495 April Term, 1904. . C., 324; 388; 19 28 C., Rich., 198; 58 15 S. Ky.; Ency. S. 7 P., P. 512. & years Ten record deed re- barred after 359; R., maindermen: 3 Eq., 384; Gratt., Strob. 32 N. 10 E.

363; C., 58 532. S.

Messrs. Johnstone, contra, Welch Pre- McGhee, & cite: liminary is 3 R., on R. 1423. survey noil taking: Elliott 375; entitled to C., compensation: S. Defendants Pierce on R., R. 177. The interest of defendants a vested 277; is 4 Rich. 530. Eq., S. fee defeasible: Statutory proceeding proper remedy for defendants: C., 313; 64 C., could not seek com- Defendants until tenant: pensation death of life

July 1904. The opinion of the Court was delivered Pope. defendants, T. C. except Mr. Chiee Justice Turner as clerk, a claim the based third clause upon of the last will and testament of Bennett the Reynolds, elder, to the land, McGhee tract acres, containing through the track and road-bed of the and Charleston Western Carolina Railway located, after the Company of B. death F. in which occurred Reynolds, the month 1901, who said May, third clause of the last and will testament of elder, Bennett the Reynolds, a life given in lands, estate said their in the presented Court of petition Common Pleas for Greenwood County, State, said wherein that under the they prayed laws of this State (regu- the. lating a railroad could proceedings whereby company a secure over lands and locate its and track road-bed were entitled to have a thereon) assess jury their said as damages against railway company said over Honor, for track road-bed their lands. and His order, the Townsend, usual to T. Judge granted referring as clerk Court Esq., C. Common Pleas for Turner, State, this notice to County, give Greenwood the plain- the date and place tiff when where clerk said railway C.

Opinion of the Court. made assessment to be would impanel jury pass upon for the defendants said against railway and road- use of defendants’ lands with and its track said the Charleston bed. Whereupon plaintiff, these Western Carolina its action against Railway, brought enjoin that the perpetually Court would defendants, asking thereafter, defendants, endea- now and at all times from com- railway to1have assessment made against voring aforesaid. On the lands pany right way through October, pre- the 18th Gage granted day Judge defendants, and ordered injunction against liminary an in this action. By be determined rights of parties . order, issues consented all of law fact parties, to by master for Moore, were referred to as Greenwood William J. he -found County, report against By State. also- that the de- but found railway company, their action against fendants bring separate would have to Both assessed. railway company damages sides appealed report to this controversy master, had before the Honorable hearing that the he decreed Judge, A. Joseph McCullough, special had a master was defendants correct holding dssessed, he that the master to have their held have that the could not was incorrect defendants holding under the statutory proceed- their assessed and there-' He, which had been ings enjoined by Judge Gage. that the master’s as found sustained so of fore, report much from the railway the defendants entitled to1damages were lands, but overruled for the of over company of the master’s report. the other part of special from the whole decree appeals now plaintiff error: McCullough following grounds, alleging Judge In the work of constructing “I. and that finding holding the land involved in case Railroad across this G. & S. L. the death of Bennett Reynolds, not until after begun submit, the evidence that Sr.; when, as shows prior we Sr:, the said Bennett said Reynolds, railway the death April Term, road, its location of company had finished the and survey and had therefor making taken of said land possession by road, the final out location of its said and with staking proper stakes, the width and showing depth grading to be done thereon.

“II. In not a step and that said work finding holding road, construction said and that such construction had been before death said Bennett begun of the Rey- under, Sr., he and all nolds, persons through claiming him, been barred the statute limita- long since cases, to such tion, applicable from asking any compensation for the taken. land so case,

“III. In not under the evidence in this holding, possession railway purpose location, construction, final out and was with the staking Sr., and knowledge consent of the said Bennett Reynolds, amounted to the the said Bennett giving by Reynolds, Sr., of his.land. right way through In not

“IV. F. holding conveyance B. Rey- Greenwood, nolds to the Railroad Spartanburg Laurens land, Company gave right of the said way through which has -cometo this tranters, successive appellant through to this gives appellant now said lands hold F. against said B. and all other claim- Reynolds, persons Sr.; under the ing further, will Bennett Reynolds, that all such persons now barred and estopped thereby from the Charleston asking compensation and Western Carolina Railway Company land or way. In not

“V. finding the defendants holding case, Turner, other than T. C. did not have—when the Greenwood, and Spartanburg Railroad Laurens Company of land strip took mentioned in the possession com- such interest therein as plaint any entitled them to herein — sense, be called owners thereof or to any any compensa- of the said railway tion reason by company’s right lands; therefore, in not, over said that holding

Opinion C. of the Court. not under the laws State South proper or necessary condemned Carolina for the to have said railway company lands. the interest of or all such in the said any parties defendants, In respondents, “VI. that the said holding lands;'and in not took fee in the said defeasible interest re- that their interests therein were holding interests, as entitled them mainder and not such interests then, for use at any since, or time compensation said lands or of way. In herein respondents,

“VII. holding defendants, have the to institute pro- were not bound and did not statute, under the when ceedings compensation, for Greenwood, Railroad Company and Spartanburg Laurens lands, and that could they into of the said possession went do this until the death of B. F. that they not Reynolds; are, therefore, from asking compensation, not barred fixes twelve statute of limitation which Carolina,' South or car? damages months such compensation within which had. be the dc

“VIII. In that as evidence shows not holding fendants, posses- herein adults when respondents, were Greenwood, land Spar- sion of the said Laurens full and as had they began, tanburg Railroad Company they right, of such had possession, legal knowledge then, to under the statute on them take steps duty or because damages for recovering land; so and that failure do of the said taking became and have ever since been months, twelve force, of the statute then of the terms fixing barred by such damages compensa- limit or beyond time asked, time any not at thereafter asking could tion because of such talcing said land. defendants, herein respondents, “IX. In holding had institute condemnation pro- not would statute, to the death B. F. prior Rey- ceedings not then be it could ascertained who would because nolds, Railway Reynolds. April Term,

be entitled as remaindermen to the or that might been fixed in condemnation; such and in not under the holding statutes Caro- State South lina, then and force, now of all condemnation proceedings and involve one contemplate of lands only taking sought be condemned; and that on such condemnation the rights and interests of all interested persons extent, and any by whatsoever title or lands, claim in off, such are cut and any and all such are persons remitted to the condemnation fund paid by party such lands, and not condemning holding that for this reason herein were defendants, respondents, then bound under the statute to have the said land con- demned, and to assert their interest the fund raised thereby; and having failed to. do so' twelve months after of the beginning railroad, construction said they such, now barred from or asking daim asserting against any any title Greenwood, successors said Lau- rens and Railroad Spartanburg Company.

“X. In that holding defendants, respondents, were not barred their laches by and estopped their conduct from instituting to. be and proceeding sought 'enjoined herein, in not that holding conduct, because of such and very great delay such instituting proceedings, are now barred and estopped such relief. asking any

“XI. In not that the holding possession Green- wood, and Spartanburg Laurens Railroad Company of said lands, continuance, when began its during was as aof therein, fee title simple thereto, color title and' that such possession continued, open, adverse and no- torious -for more than ten years; posses- sion, of all other claims and irrespective said rights, the a title to the railway company acquired said premises cannot be interfered with defendants, now re- other persons, spondents, Circuit Judge so in not erred in not holding", granting perpetual injunc- to the for. plaintiff prayed tion

“XII. In not finding 'holding that the plaintiff and C.

Opinion of the Court. use in years title had predecessors acquired twenty its by lands, cannot a over prescriptive right way defendants, or respondents, now be interfered the with any other persons. no' other if, In that

“XIII. not and finding holding injunc- to perpetual herein entitled plaintiff ground, the statu- continuing tion defendants restraining that, reason for the tory proceedings sought enjoined, had this plaintiff was begun, when proceedings statutory of defendants right denied and continued to deny true, said de- and that being or compensation damag-es; such had no to institute proceedings fendants right such damages compensation. or purpose fixing any fact of denial In not that the single “XIV. holding' was, to compensation of the defendants’ plaintiff insti- is, statutory proceedings sufficient to make of damages improper tuted for the assessment them to such have first established until shall illegal, they action pro- other and or independent some not, therefore, claim plaintiff’s and in sustaining ceeding, ato injunction. perpetual that the defend- In at least finding holding

“XV. not ants from asking should be enjoined the value them for except the statutory begun by proceeding Greenwood, taken, as of date when of the land Laurens possession took Company Railroad Spartanburg same, the then interest of defendants and the extent of n therein, therein, interest remainder to wit: their and in' therein, per- had not interest as. other the defendants from compensa- asking petually enjoining n tion.” pass undertake to these upon exceptions by will now We application but to understand thoroughly groups; and the decree of the Circuit report the master’s same to of the case necessary report think it we Judge, master’s and the Cir- report of said copy should contain cuit decree. Term, April excep first, and third second wild pass upon

W>e now at this point tions. It is remember just well to railroads mode of of this statutes regulating State another, lands of over acquiring 2196 Civil Code announce section definitely herein con- Carolina, 1: “Nothing volume South lands tained shall be construed to prevent entry be seen It thus and location.” will purposes survey in the when several prelimi- year'1882 year as the tract of land known made were over nary surveys 1883, to Bennett Rey- toup July, McGhee tract belonging, to go in the the elder, railway the it was power of nolds, location,” survey said lands “for the of upon purposes the elder. the of said Bennett Reynolds, without permission ever served The that no was testimony convincing notice the elder, Bennett the that upon Reynolds, railway company tract a of over his McGhee locate proposed right way the of and it is also that land,, convincing railway company said never construct their track or road-bed upon began October, 1883. Bennett died lands until after Reynolds T. the 1883. Mr. F. who obtained July, Riley, right way for the testifies that he did not company, apply railway elder, the because Bennett Reynolds, right way, October, dead, he he did on the 13th was but that apply, and received to B. F. for such 1883, Reynolds right way, the on that a deed for said over right way him day is forced our upon McGhee tract of land. conviction that does not these support exceptions, minds the testimony overruled. consider the fourth We will now Not exception. only on the B. F. McGhee tract of land Reynolds living father, SO'of life last the of his Bennett year the during elder, the but will of Bennett Reynolds, Rey elder, he, the world nolds, 2 advertised ,was held the B. F. McGhee tract of land for Reynolds, So, natural no therefore, his life and longer. and during took his deed for railway company when Reynoeds. 502

Opinion C. S. Court. in what estate question, .the acquired by deed said B. F. had in re Reynolds said lands. This Court has cently passed of a matter railway acquiring of way tenant, from a life Ry. cases Cureton v. Co., Darden, S. Trimmier E., 914;. 61 S. C., In E., both conveyance cases of such life tenant confined to he the estate had Now, lands.- for this Court to hold that deed of life tenant to said lands ad would under the operate, testimony at duced death trial, béyond the of B. F. Reynolds (who died in May, 1901), so as to< of the children defeat B. F. will, under their would Reynolds, grand-father’s an incorrect When Bennett advancing proposition. Reynolds, the elder, son, his B. F. with Reynolds, clothed only land, estate in the life tract of the same McGhee here, will he clothed defendants grand-children, named as Court, with fee lands; estate of said and how this simple in-its to the decree of Mc hearing exceptions Judge can Cullough, constitutional ignore provision private shall not be taken property railroads from the owners owners, without first to such thereof making we cannot see. This is overruled. exception

We will next examine the fifth We have exception. already first entered railway company -held upon McGhee lands purpose to them- appropriating a selves over said three and right way lands one-half months after the death of Bennett the elder. Reynolds, F. Therefore, whatever interest B. and these de- Reynolds fendants in said in lands vested them the acquired by elder, Reynolds, will Bennett for three and one-half this railway months before asserted their company over lands. B. F. a Reynolds said had life estate. only had their These defendants of said McGhee lands possession after the of B. F. till death Their only Reynolds. postponed to said lands was immediate upon title deaith of Bennett elder, with the possession Reynolds, postponed. served no notice one railway upon any 503 Reynolds. v. April Term, 1904. lands as of their SO'much defendants require would is over- were This way. exception for a necessary ruled. ‘ The language We next exception. will consider sixth elder, as follows: of the will of Bennett Reynolds, son, Franklin “3. I devise Benjamin unto bequeath my resides, he now all that tract of land on which Reynolds, ** * have, use and the same enjoy during life, to' his chil 3 B. F. natural at death Reynolds’ at that be may living dren or children whoi had estate, time.” F. a life who As B. had Reynolds only the fee cast the death of Bennett Reynolds, them by It section 2483 of elder? must vest one. By in.some Carolina, the Civil volume it is provided: Code of South “No shall an necessary convey words or limitation devise, estate in fee of land de but simple every gift unless such vise shall be considered as a fee simple, gift testator, of the construction be inconsistent with will B. F. The children of expressed implied.” Reynolds were in esse at death of testator. provision So fee will F. simple to the children of B. gives Reynolds them, estate ‘the as before tract of land. Title vested remarked, on the death of but possession postponed testator, until the death B. F. The Circuit Judge sug defeasible, that it vested fee Rivers citing be a gested might C., v. Boykin Boykin, Rich. Fripp, Eq., however, think, 530, in We support proposition.

that the authorities support proposition our State remaindermen. Faber defendants took as contingent therefore, This over Police, is, exception ruled. and ninth ex

We will next examine seventh, eighth these states Appellant question presented ceptions. not, be, or that the re to “Whether assuming

exceptions interests in these lands as could had such spondents condemned, have lost to compensa 4 be twelve months from tion therefor within by failing 504

Opinion C.S. of the Court. the completion to' ask as provided of the road compensation the statute.” sections of Civil Code of South Carolina, ; volume of 1883) of Gen. (1550 Stat. (1551 of Gen. Gen. of of 1883), (1558 Stat. of in Stat. as : 1883), General follows appear Statutes au- “1550. Whenever shall be any person corporation or canal, thorized charter construct to a railway, turnpike or in other such cor- public person or highway, State, before of lands for poration, entering upon any purpose construction, shall he thereof be sui give (if owner juris) in notice, over is of lands writing, said for such shall at required which be purpose, given notice lands; least said thirty days before and such entering upon shall notice served such the same manner upon be owner bemay as law for the service required of summons not, civil actions. If the owner shall within the period notice, thirty of after service of days said signify, writing, h:isrefusal or it shall thait consent, be such consent presumed and such or given; person may thereupon corporation Provided, enter That however, lands: the owner of said lands be entitled to for an may move assessment in the manner hereinafter directed. 1551. If the his owner of said lands shall

“Sec. signify lands, refusal of consent to without entry upon previous such compensation, person corporation requiring way shall to the Circuit petition, Judge apply, by wherein such a lands are situated for the empanelling amount just ascertain the which shall be as jury paid right way required, peti- be set tion shall forth the names description lands, owners, for which the lands are purposes required, such other faots be material. may deemed On -the hearing Circuit shall petition, Judge order to be filed in of the clerk of same the office Court of Common for said and shall further order the Pleas clerk of county, jury the Court twelve ascertain the empanel com- for the use the lands and it required; shall pensation Railway Reynolds. April Term, 1904. order, clerk, such

the of said on immediately duty receiving thereof, in writing, lands notice to the owner of give the as- the day shall be On and of .the assigned. day if clerk, in the of presence parties, said signed, disinter- shall shall select the names of twenty-four attend, number shall and from that ested freeholders of county, and shall cause act as jurors, draw names of twelve to at summoned to meet such those so to be forthwith drawn at time as he for the assign, purpose place may lands, the compensation said examining ascertaining of same; shall to over the way be made clerk, further his deputy, be or person duty of or- to attend at the same place purpose time and he shall have to summon from power ganizing jury; as freeholders to act jurors other disinterested vicinage shall fail to the stead of of those first summoned who' any attend, be either on objected or who shall party * * * account interest. ground disqualification 1558. herein shall construed to prevent be Nothing “Sec. location; lands for the

entry upon any purposes survey shall and if in case owner of lands any permit over the way person corporation requiring the construction without same to enter highway shall the said owner compensation, right, previous constructed, ho demand after the shall have been highway for an assessment of the same compensation, petition Provided, directed: petition in the manner hereinbefore Such after the shall shall filed within twelve months highway his or her lands.” have been completed through under a mistake. He see that labors appellant We fact, he is a all refers in his to what viz: that says argument adults at the time this these defendants were October, the life tenant in the deed of was conveyed case, for the master in assumption This is groundless sets fact that the these defendants his report up ages .of at the of his twenty-four years time forty years were 28, 1903, from which it that all follows report, April v,

Opinion C. of the Court. defendants were at minors the time of the construction the to1, is, railroad. This was not there- finding excepted fore, all the to It binding upon parties, this action. seems to us that this duties lia- as to1 statutory remedy rights, bilities of railroads as private as well parties, corpora- tions, in the matter of of as to those rights way, falling within statute, the is exclusive of other to any methods another; secure and, further, of the of over lands rights, way Court, that if this scheme of the upheld law is this by defendants, who1 fall respondents, without condem- may statute, nation cause, have lost their Circuit and the Judge error; would be in for to section 1558 certainly proviso1 declares.: “Provided, such shall be filed within twelve petition months shall have been highway completed through after a fact, action, or her lands.” It is not denied in this this acquired of the life tenant in right way through 1883, and that year (October) railway completed 1884. This on the of the defendants was proceeding part October, far begun certainly longer, point 1901— time, than twelve after months was. completed. railway The Circuit decreed that the to have the com- Judge assessed to the defendants exists and shall pensation now be enforced in the as set method out in statutes our State regulating obtaining lights way. us examine care law as with settled our

Let de cisions in this. It should be conceded that this case State. not a plaintiff was. railway trespasser upon McGhee land, tract of for entered said land under a deed to made tenant, thereover the life railway right way 421; Co., C., B. F. v. R. R. Reynolds. 2 Tompkins S. C., 377, Co., E., v. R. R. 59 It Cureton 37 must S. S. also be conceded that the caused no railway notice of their intended said land construct their upon rail entry served way be defendants one of them. It must conceded that the also be now denies plaintiff railway to- that the defendants have any right circumstances, over their lands. Under these right way (cid:127) April Term, 1904. here? what do our law applicable decisions establish to1be the In Ridlehuber, the case of R. R. Co.

E., 24, after a of the provisions statement pains-taking statute law of this as to condemnation proceedings State over the lands of governing obtaining rights Mclver, others railroads, Chief organ Justice review, us it seems to1 Court, said: “From this brief obvious that while a has been pre- mode special proceeding scribed for amount of compensation ascertaining entitled, owner, this, which the in a like shall land case has where the to' is either conceded or determined, been is no mode already prescribed by there which such can be tested when it is denied.” right Co.,

Next in order case v. 59 was the of Cureton R. R. C., a 371. In case it was held that when railroad S. this serves notice a that it a company requires land owner land, of right refusing his notice way through writing such consent is it takes served on the no company steps condemn, to an action to his may try right owner bring to and amount In case the case of this compensation. of also, R. R. v. Ridlehuber, Co. was affirmed. supra, See, E., Glover v. 62 39 C., 780. Remley, S. S. Burton, 63

Next order the case of R. R. Co. v. E., In of the land this case right owner to for to the defendant compensation injuries by right Held, of railroad' was the railroad. way denied tried, that that such to be con disputed was first right not furnish a method of demnation statutes this do State Ridlehuber, that R. v. R. Co. trying right. Affirming supra. these authorities it is established in this State that

By a where the to a land for right compensation right owner over lands is denied wish- way his by railway such that the statutes of this ing right way, pro- State for to machinery determining viding such do not means to provide 'for paid right But our Court of Pleas, Common right. having try has the Cure- jurisdiction, power try right. general

Opinion S. C. the Court. ton v. R. R. Co., Burton, Thus R. R. Co. supra; supra. it is made that manifest the land is not dependent owner alone statutes, railroad condemnation for if the denies fall his condemnation does not right to and he within the terms of such condemnation he have his statutes, may tried right elsewhere. condemnation,

In case the railroad denies the and in an itself, action set that motion railroad has been decided to Inasmuch as defendants’ exist. denied, and inasmuch as compensation was were minors at the time construction of the railroad construction, and could not consent it is give entry, clear that the case of fall the' defendants does not within statutes, condemnation and must' the time follow within which for condemnation must be com- proceedings menced has no defendants’ case. over- application to We rule the exceptions of and affirm' the conclusion appellant, of the Circuit Judge. further,

We will say to the mode of relating proceeding in the ascertainment of the to-be the land paid owners: The Circuit decree Judge, herein, orders- such compensation be ascertained under the laid method in down the condemnation the clerk statutes, wit: before of Court and a of twelve men. see error in jury We no this method of procedure. It was virtually adopted the Court in by Burton, R. R. v. It Co. has also the supra. sanction of the case Mauldin, of Council Greenville v. City 64 E., 25 200. It was competent court of equity, case, having acquired jurisdiction of to render full relief by for the assessment com providing methods, pensation a by ordinary but is convenient mode of expeditious after procedure, determining right compensation, to use machinery provided condemnation statute. in the

Appellant tenth claims that exception defendants are barred laches in the assertion of their rights. These occurred in rights May, a they brought proceed 509 v. Term, April held already 1901. What we ing October, It a is over is sufficient to- this- -exception. answer ruled. not

We do Railways will now -examine eleven. exception obtain a fee title to lands under condemnation simple pro- those The B. F. not under deed of was ceedings. Reynolds estate, statutes. a life he could no He had co-nvey only more. This overruled. exception is The

We now examine twelve. exception occupation will life of land under a deed tenant does not such allow be a o-f remainder- occupation to shield against rights men This after the death oif life tenant. immediately exception is overruled.

We pass exceptions will now thirteen fourteen. The defendants not know advance of their pro could' that their to-com- ceedings against railway It order proper would be denied. pensation Gage question until could Judge Such, think, the practice determined. we ap- of in the late cases decided this Court —R. proved one of Burton, Ridlehuber, R. R. R. Co. supra. Co. supra; These overruled. exceptions exception. fifteenth pass, upon we will

Lastly, in the assessment opinion Court is of the jury the defendants for the paid to be -lands, value of defend way over such must right way ants’ remainder 1883,'when October, it existed in be ascertained the railroad and that began, construction valuation, such with interest from date. be allowed Court, that judgment It of this judgment is the be and affirmed. hereby the Circuit Court concur, the understanding I Mr. i Jones. Justice the value de- be to allowed compensation manner at the time of with taking, remainder fendants’ interest. Railway

Opinion the Court. C.S. . 1882, time in concurring. Some Woods, Mr. Justice Greenwood, the and Com- Railway Spartanburg- Laurens Abbeville, made pany entry a tract of upon land now tract, Greenwood, County, known as the McGhee containing acres, less, more or the of Bennett Reynolds, property Sr., for the locating and its railroad purpose surveying Sr., 1883, thereon. 3, Bennett died Reynolds, July leaving of force a which the tract will he devised McGhee to his by son, death, “at his Benjamin life, Franklin for and Reynolds, to his children their children who at that living may time.” 'No been obtained the conveyance by having- railway 13, 1883, company Sr., from Bennett on October Reynolds, B. F. tenant, Jr., the life his deed Reynolds, to by conveyed a feet two hundred wide railway way company right land's, road through line which the was sub- along constructed. No notice of for construction sequently entry was served B. F. children of This Reynolds, Jr. right of has been used since ever continuously Greenwood, and Spartanburg Company Laurens and tenant, B. life its successors. F. Reynolds, Jr., 1901, died having 1901, on October defend- May ants, B. R. B. Reynolds, F. Reynolds, Reynolds, Emma J. children, T. claim- Reynolds Eva W. Reynolds, only ing tract remaindermen McGhee under grand- will, father’s óf Court Common presented petition Pleas for Greenwood the Court County, praying assessed, the condemnation the amount statute, were entitled for damages use of said of land strip Charleston and Western Carolina Greenwood, successor of the Railway Company, hear- 'Spartanburg Railway Company. Upon Laurens ing order, Townsend the usual petition, Judge granted the clerk of Court to directing proceed empanel jury ascertain amount

should be defendant paid railway to the clerk of Court due petitioners. gave notice filing order, fixed a of such day assessment. making Railway Reynolds. April Term, plaintiff, Charleston and Carolina Railway- Western

Company, denying heirs to have Reynolds the assessment made, then action have them brought its and the clerk of Court enjoined fur- perpetually going ther with the said and, the determina- proceedings, pending issues, tion of the for a temporary injunction to stay proceed- under the ings petition. 18, 1901, a On October prelimi- injunction was nary granted and at a sub- by Judge Gage, 1, on sequent 1901, November hearing he ordered that the injunction should continue tried, until action until the further order of the Court. the consent of By all 1903, cause parties, 19, was referred on December Moore, W. master for Greenwood to take the County, J. testimony and to his report both law and fact. findings The master that found the claimants were to com- entitled pensation for the use of the lands railway company, but that could they not recover statutory proceed- ings, solely ground denied; right-was recommended that further under the statute be proceedings permanently enjoined, but without to the prejudice rights the claimants to bring action separate against Charles- ton and Western Carolina for the assess- Railway Company ment of Both damages. sides excepted to the master’s came report, the cause on to be heard on the exceptions before Hon. A. Joseph McCullough, spe-

cial aat Judge, special term of the Court of Common Pleas Greenwood In bis filed County. decree, June Judge McCullough sustained of the master that finding heirs Reynolds were entitled to but over- compensation, ruled his were not finding- entitled to recover under statutory proceedings; that the case adjudged should proceed though injunction had never been temporary obtained. Prom this decree the plaintiff has appealed, exceptions asks, effect, that the propo- following sitions be sustained:

1. That construction of the railroad of the Green- wood, and 'Spartanburg Railway across Laurens Company

Opinion C.S. of the Court. the lands in question the lifetime of Ben- begun during nett Sr., Reynolds,' consent, with his and and knowledge them, this amounted to his a over giving right way all and persons under him are barred the statute claiming by of limitations of twelve months the condemna- provided by statute, tion Code, section Civil and such to applicable cases.

2. That the over said conveyance way lands B. F. to the by Reynolds, Jr., life tenant, gave title all good against parties claiming railway under the Sr., will of Bennett title has been Reynolds, transferred to in this plaintiff action. defeasible,

3. That B. F. did not take a fee Reynolds, Jr., but the remainders and the remaindermen contingent, were had no such interest the said lands as to entitle them to be called or to them the owners', give for the use of the and, same there- by railway company, fore, it con- was not necessary railway company demn their interests. State,

4. That statute of this the con- lands, demnation of all the and interests whatsoever rights off, all interested in such forever cut persons lands are and all are remitted to the fund persons paid by such lands, and that for this reason the party condemning defendants, remaindermen, had the and contingent right, bound, were to institute under the for proceedings, statute, Greenwood, after within twelve months Railway went into Spartanburg pos- Laurens Company session,. and that itheir action barred their reason of B. F. until the death of Reynolds, after delay Jr. Greenwood, were adults 5. That the defendants when the took Spartanburg Railway Company possession Laurens lands, and aware of such fully possession, of said being to' institute for legal duty proceedings, compen- became months, sation within twelve railway company against this, barred the statute. and failing- Greenwood, That the Rail- Spartanburg Laurens 518- ' April Term, 1904. way Company acquired title adverse possession of land in use dispute, continuous strip twenty years it by and its successors has them given prescriptive right that cannot be disturbed.

8. That-plaintiff’s denial of defendant’s compen- sation and made their them im- assess proceeding until such proper illegal, estab- right should been lished an action or independent proceeding.

9. That in event the defendants could recover com- pensation only the value of their interests in the land the Greenwood, when and Spartanburg Taurens Railway Company them, took possession interest with from the date of the taking. Sr.,

Bennett Reynolds, no1 gave express permission railroad should land, be over his constructed and it is clear evidence that the did not to. con company begin

struct its lifetime, road over the lands in his but only, route, 1 surveyed and located the and hence the permis construct, sion referred to in section 2196 of Code, Civil cannot be inferred from his inaction or silence.

It follows that the of that provision which requires section^ the owner of land who permits the construction of rail- th'e his road over land to1 entered to file his for upon, petition compensation within months after twelve completion road, had no- at the time of application the death of Bennett Reynolds, first, The second and third excep- Sr.

tions should, therefore, be overruled. Sr.,

Under the will of son, Bennett Reynolds, B. F. Jr., land, took a life estate Reynolds, in the with children, 3 remainder to his grand-children, interest of each being contingent B. upon surviving was, F. The Reynolds, remainder therefore, contingent. Jr. 10 C., v. Police,

Faber S. fourth, The in its fifth appellant‘insists and sixth excep tions, that it from this follows construction of the will that of the B. F. conveyance way Jr., Reynolds, tenant, life barred the rights remaindermen

33—69

514 R^ynords. C.

Opinion S. of the Court. true, 2 all is that held in Tutt v. others. It it was Co., C., E., 831, 388, 5 Co. R. R. 28 Ry. S. S. C., E., tenant in Scott, 38 16 life posses S. S. 34, 185, to in the con sion was to be referred regarded “owner” statute, demnation and that his deed was sufficient to protect and others inter the railroad remaindermen company against ; ested these cases must be upon regarded but question Co., overruled of Cureton v. R. R. case E., is laid where the sounder doctrine down life consent to the tenant in no empowered sense inter the interest of the remaindermen or others taking of ested in the. or to collect due the'compensation property, others taking Constitution guaranteed by therefore, Reynolds, Jr., deed of B. F. property. except fight to the railroad conveyed nothing effect Hfetime, for his and had no claim- remaindermen for compensation. of the most important

This the consideration us to brings in the First. Did the remainder- case. questions statute, to have men have the under the condemnation right, interests in the land taken by value of their sttch contingent assessed before railroad company tenant, become, the death of the life interests had estates, with them fee simple carrying vested have If did have right, they possession? Second. of time as to be it for such length to- exercise failed first de question statute of barred by any limitations? in the to-the term owner the signification given pends upon com statute, for it that the railroad provides condemnation to the looking institute proceedings pany may land; his the railroad when for taking owner with the owner’s permission construction enters upon institute like then, that the owner pro may fails to>condemn his behalf. on own ceedings that in enact- Assembly the General obvious

It seems very have intended statute must to-provide the condemnation ing interested in the land should person every a method 51-5 v. April Term, 1904. and paid have value of his interest ascertained judicially for, and that the be able to obtain corporation per should to: its all, have title fect title once for and not bé forced its is in business, clouded and in which the interested public so to many ways, liable future claims to the interruption by To out this property. broadest most cany design, term, owner extensive should be to' the signification given act, wherever it occurs in the and it should be held to>embrace land, .all who future, have interest in the or any present vested or or interest estate which law any— judicial of sufficient value for It regards takes recognition. fee,

the sum of all all these interests make and must be taken to constitute full This is ownership. together to the word lamd as accord with the broad meaning assigned Co., the case of Ross v. R. R. used this statute 33 S. E., 12 101. S. There no in the practical difficulty valuation

separate of the interest of jury each part (cid:127)owner land.

This is not view inconsistent with decisions any Tutt Co., Court, Ry. except C., 383, E., v. 28 5 381, and others case, which, seen, following we have been overruled. In on the Inter- practically Endlich Statutes, at section prepation is said: stat- “Under utes providing the ‘owner’ lands taken for like, or the the term highways, railways., applies same, one in the having interest whether estate legal be an estate in fee less a fee.” than

There are numerous other authorities the same sustaining Railroads, view. on 3 secs. Elliott Pierce on 1023, 1025; Railroads, 185; Domain, Eminent sec. 335; Lewis Boston, Parks Law, 1194; Am. & Eng. Ency. Pick., Watson N. Y. Co., 198; Central R. R. R. N. Y., 161; v. Williams, R. Co. St., 54 Pa. The is thus principle stated strongly by Chief Par Justice v. Welch, Mass.,

sons in the case of Ellis 251: person “Any land, an interest having either as lessee for years, life, tenant for or for any greater estate of freehold, as also

516 . C.

Opinion S. of the Court. remainder, owner, he an pro- in reversion or is within he section; because, mischief, vision of this within the being We, therefore, conclude that within the remedy.” “owner” in the includes the remain- term statutes contingent here. dermen are the claimants who follows, conclusion, that the railroad company It have these remainder- could rights barred , condemnation them to> parties proceedings by making men further, if without they compensation, and permitted, the road to' enter the construction of upon railroad company institute, on the life tenant and failed to- the lifetime of one- behalf, for within their own proceedings railroad, such after the completion proceedings year barred, section 2196 of the Civil Code. would be did enter upon It is not denied that the railroad company and that it was completed the construction the road for and entry The the owner years permission many ago. would ordinarily pre construction before Co., from this state of facts. Rankin v. R. R. sumed however, E., record, C., 532, 36 It from the appears minors when the was made and the claimants were entry that- built, incapable hence they giving railroad were statute two classes allows only any binding permission. to condemnation prosecute proceedings: (1) of land'owners has served notice under company whom railroad those on Code, Civil who allowed section 2187 their refusal or their to enter without signifying company consent; who-, in absence of the formal those (2) notice, to enter company have permitted statutory railroad their lands without through the construction These remaindermen never compensation. having previous the railroad company, served notice by having been with the time of construction incapable infants at giving been enter, the statute no provides permission them, hence are not barred failure remedy under the condemnation statute within' proceedings institute of the road completion through after one year land.. Railway Reynolds. April Term, 1904. had no

They an action for really remedy except ordinary and this not damages, would be barred until six after years in of the life estate! B. P. life falling Reynolds, Jr., tenant, 30, 1901, died and the which May six within years his children, the remaindermen, could have brought action for of their damages appropriation property, under section 112 of the Code of Procedure, has not yet expired.

The discussion foregoing disposes exceptions twelfth, fourth to the inclusive. The defendants are not, seen, as we have barred limitation of by statutory months, twelve nor1are if barred, we they apply by analogy the limitátion of six years the Code of Proced- provided by ure. s

The do not exceptions raise the question claimant could not have their assessed a condemnation damages' by on the fall jury ground do not within either of they classes of land to', owners above referred who are authorized statute to prosecute condemnation proceedings they Therefore, undertaken. I think, while above, indicated do not fall within either of these owners, two classes of land and hence should have brought an action for ordinary instead of proceeding statute, condemnation there is no basis the exceptions the decree of the Circuit on this reversing Judge point, the doctrine thereto applying stated in relating Cureton Co., v. R. In R. an supra. absence of exception raising the question, the Court is bound to consider the case as if land owners in the situation of the claimants were allowed to obtain under the compensation statute.

The next appellant’s is that the position statutory proceed- instituted defendants ings should be perpetually enjoined, because the statute has no case application where denied, and that the method pro- at vided cannot such case be used even for the mere ascertainment of amount after the

has been determined another in. proceeding. cases of C.

Opinion the Court. Co., Ridlehuber, supra, and Burton v. R. R. Co. v. supra, Ry. Without detailed this support proposition. relied to the cases, the of these or language of the facts analysis on this more Court, me decided nothing it seems to they' no-means statute afforded that the condemnation than point an that reason to and for the compensation, of testing right the compensation the land to effort owner obtain by cona railroad at the instance of the enjoined statute would be It had been determined. until the disputed right pany action for an true, Co., ordinary v. R. supra, Cureton R. condem the that the was sustained on ground compensation the facts in the to alleged nation statute had no application held that the statute made in that case it but was complaint; an had signified owner who' by no provision proceedings his land without previ his refusal to consent to taking railroad a notice from the to: response ous compensation, Code; 2188 of the Civil 2187 and under sections company, pro to: on the carry statutory failed and the company having amount, the ascertainment to' the ceedings looking to' his right compen to establish had no either remedy owner sation or to ascertain the amount to except action. bring true which I think these decisions

The venture to principle is, down those cases lay procedure provided where the statute is to: ascertainment of by applicable amount, enjoined will be when the procedure right is denied until the is determined compensation right action for For if the owner of the land injunction. example, should the railroad fio enter the con- permit company struction of the road and then file his under the petition, statute, for more than twelve months after the compensation road, and the railroad should completion institute an action on the to.enjoin the proceedings ground was barred compensation by lapse fio time, it would be unreasonable hold manifestly limitation had no statutory statutory proceeding on'account because the denied application, statute In such limitation case the prescribed by .itself. April Term, until the owner would be proceeding by enjoined question in issue should be decided. held that the Having case, exists in furnished there is no> ground h>refuse by exceptions compensa- to allow amount tion to be determined under the condemnation statute. The- thirteenth and fourteenth for these reasons should exceptions be overruled. is, to the should the remaining question

defendants be measured value of the fee in the present taken, land the value of the fee at the time land was-

taken, or the value of the defendants’ 'interest in the land at the time it taken. The defendants’ the ascertain contemplates proceeding ment, under statute, taking Their was taken property. which property contingent interest in the land railroad appropriated by company. seen,

As we have it was that interest would been if valued had been instituted either proceedings by railroad claimants at that time. can They have no now under statute than higher right would they have had at that It time. is the ascertainment that has only should, therefore, been The postponed. be based on the value of the at interest the time of contingent 13, 1883, the appropriation, October with interest from1that date. This view is sustained fully by authority. Pick.,

In Boston, case of Parks v. 198. Chief leading be, thus states the rule: true “The rule would Shaw Justice as in the case of other is due and purchases, price made, to be at the moment the ought when paid, purchase credit is not And if a agreed upon. specially pie-powder court could called on the instant and on the be the true spot, be, rule of for the would justice public pay compensa- hand, other; tion with-one whilst the axe with the they apply and this rule is from because some time is departed only -law, the forms of to conduct the necessary, by inquiry; must be interest. But in other delay compensated by must be appraised the same rule as respects v. Evans. CorlLy

Argument of Counsel. S. C. * * * would have been on day taking. jury instructed, correctly that in estimate of dam done to an ages use, estate taken partly public value of the estate on the of the true day was the taking, value to be taken their assessment of jury the dam also, See, ages.” Woodruff, R. v. R. Co. Am. Rep., St. note; Dec., Co., Winona R. R. 88 Am. note at cited; and numerous page authorities v. Provi Stafford dence 14 Am. (R. 710. The fifteenth I.), Rep., exception should, therefore, sustained, be and the measure compen sation value should be the of the defendants’ re mainder at the time 13, 1888, October with taking, interest from that date. modification,

With this Circuit judgment Court should affirmed.

CORLEY EVANS. Judge appeal magis- Appeal. Finding of fact Circuit — binding trate is on this Court. Magistrate cannot entertain 2. Jurisdiction —Counter-claim.—A jurisdiction $100, and defendant cannot of a counter-claim oust jurisdiction setting up magistrate of cause counter-claim be- yond jurisdiction. Richland, A. special

Before Judge, McCullough, Jos. November, 1903. Affirmed. A. in magistrate R. H. M. Corley against

Action Evans of magis- order affirming judgment court. Erom Circuit trate, , appeals. defendant cites: Duncm, Magistrate for appellant,

Mr. Jno*. T. Brev., 63; 3 counter-claim: have entertained should here: Proc., proper Counter-claim 407; Code

Case Details

Case Name: Charleston & Western Car. Ry. Co. v. Reynolds

Court Name: Supreme Court of South Carolina

Date Published: Jul 30, 1904

Citation: 48 S.E. 476

Court Abbreviation: S.C.