38 S.C. 308 | S.C. | 1893
The opinion of the court was delivered by
On the 23d of September,
The case was referred to the master, to hear and determine all the issues of fact as well as law. At the reference, the defendants demurred upon the ground that the complaint, did not state facts sufficient to constitute a cause of action. The master overruled the demurrer, and found that the deed releasing the right of way was not obtained by any intentional misrepresentation, but that the trustee had no power to make such a deed, and, therefore, recommended that the complaint should be dismissed. To this report the defendants excepted upon the ground, amongst others, that the master erred in overruling the demurrer. The case was heard by his honor, Judge Fraser, upon the report and the several exceptions there
Section 1550 provides that a railway company, before entering upon lands for the purpose of constructing its road, shall give the land owner notice that the right of way is required over his land, and if such land owner does not, within the prescribed time, signify in writing his refusal of consent, it shall be presumed that such consent was given, and the company may thereupon enter upon the land for the purpose of constructing its road; but this shall not deprive the land owner of the right to move for “an assessment of compensation” in the manner prescribed in the subsequent sections. But if the land owner signify his refusal of consent, then section 1551 provides that the company shall apply by petition to the judge of the circuit “for the empaneling of a jury to ascertain the amount which shall be paid as just compensation for the right of way required,” and on hearing the petition the judge shall order the same to be filed, and direct the clerk to empanel a jury “to ascertain the compensation for the use of the lands required;” and it shall be the duty of the clerk, “immediately on receiving such order, to give to the owner of the lands notice thereof in writing, and
Section 1554 relates only to the mode of ascertaining the amount of compensation to be paid for land taken for the construction of depots, station houses, &c., and has no application to the question in this case. Section 1555 relates only to the manner in which persons not sui juris, or who are absent from the State, may be served with the required notices, and its provisions are not pertinent to the present inquiry. Section 1556 and section 1557 relate to matters outside of the present inquiry, and their provisions need not be stated. Section 1558 provides, “if in any case the owner of any lands shall permit the person, or corporation, requiring the right of way over the same to enter upon the construction of the highway without previous compensation, the said owner shall have the right, after the highway shall have been constructed, to demand compensation, and to petition for an assessment of the same in the manner hereinbefore directed.” Sections 1559, 1560 and 1561 relate to matters which throw no light upon the present inquiry, and their provisions need not be stated.
From this brief review, it seems to us obvious that, while a
It will be observed, moreover, that the terms of the homestead law are very different from those of the sections which we have been considering, providing the mode of ascertaining the amount of' compensation to which a land owner may be entitled for the right of way over his land. In the former, no right of appeal from the return of the commissioners is provided for; but the provision is: “If no complaint shall be made by any creditor or other person interested against said appraisal and setting off of the homestead within thirty days after the return of the appraisers, the same shall be confirmed,” &c. But “if exceptions to such appraisement and return be filed,” &c., then the court shall consider the same. Now, it seems to us that, in the absence of any limitations upon the kind of exceptions which may be taken, and in view of the words which we have italicized in the last preceding quotation, that the right to the homestead exemption may well be raised by the exceptions, as well as the correct valuation of the property set off as a homestead, notwithstanding the subsequent provision which, if there were nothing else, would seem to limit the exceptions to the question of valuation. The statute expressly provides that the right to the homestead exemption will not be perfected and complete until after the return has been confirmed by the court and recorded; and certainly whether the right to the exemption ought to be confirmed presents directly the question whether the claimant is entitled to such right.
Then, as to the agricultural lien law, it. seems to us that the decisions in this State not only fail to support the analogy claimed by respondent, but, on the contrary, rather tend to
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for the purpose of hearing and determining the question whether the defendants are entitled to compensation as claimed for the right of way; and that, in the meantime, all further proceedings under the act to ascertain the amount of compensation be suspended.