58 S.E. 150 | S.C. | 1907
July 27, 1907. The opinion of the Court was delivered by Plaintiff, T.P. Moragne, brought this action against the defendant railway company to recover damages for injury to a mule alleged to have been caused by a defective crossing on its road. Defendant denied its liability on the ground that the road was a private way and not such a crossing as it was required by law to keep up. The facts are as follows: Some time after the road was built defendant established the crossing in question. The road leads from plaintiff's home across the railroad to the public road and certain farm lands, and is used by plaintiff's family, the family of the tenant of one Porter, and, according to the testimony of the plaintiff, "every one who had business in there, coming or going to my house" or going *438 to Mr. Porter's place. The crossing had been bad for several years, but defendant, although frequently requested to do so, had neglected to fix it and refused to allow plaintiff to do so. On February 22d 1906, plaintiff was crossing with a load of fertilizer and his mule's foot was caught between a projecting spike and the rail, thus throwing it forward and crippling it, according to his testimony, permanently. The case was heard at the March, 1907, term of Court for Abbeville County, and resulted in the direction of a verdict by the presiding Judge, Hon. R.O. Purdy, for the defendant, the ground being that it was a private crossing. Plaintiff appeals.
The question of roads has more than once been discussed in this State and the law on the subject is well settled. State
v. Hardin,
The appellant contends, however, that section 2183 of the Civil Code gives him a right to recover, even though it be a private way. That section provides: "A railroad corporation whose road is crossed by a highway or other way on a level therewith shall, at its own expense, so guard or protect its rails by plank, timber, or otherwise, as to secure a safe and easy passage across its road; and if in the opinion of the county board of commissioners, or if such highway or other way be within the corporate limits of any city, town or village, then the proper municipal authorities thereof, any subsequent alteration of the highway or other way or any additional safeguards, are required at the crossing, they may order the corporation to establish the same." This contention, we think, cannot be sustained. Aside from any implication of the act, the only reasonable construction would be that it applied only to public roads. Carried to the conclusion contended for by the appellant, a railroad company *440
would be required to provide for every crossing or path across its roadbed, whether public or private. Even at ways where the statutory signals are not required the company would have to provide for crossing. Such a construction cannot be legitimate. The railroad company is owner in fee of its right of way and its right to control it is analogous to the right of individuals to control individual property. As in the case of property owned by a person, so must the right of a railway give place to a public right when the welfare of the public demands it. When, however, private advantage is sought to be gained there is no power of condemnation. One of the very foundation elements of all civilization is the right to hold property and exercise control over it. Even governments themselves cannot legitimately rob one person of his property and give it to another. Recognizing this principle the framers of our constitution provided therein that private property should not be taken for private use without the consent of the owner. Clearly, therefore, this being a private way the use would be private. The legislature then has no power to place the burden on railways of keeping up such crossings. Mays v. SeaboardRailway,
But, aside from this consideration, the clear implication of the act is that it is to apply only to such roads as are under the authority of the county commissioners or under the control of the municipal authorities. Such roads alone would come under their observation. Not being responsible for private ways, it is hardly reasonable to suppose, even if the user thereof did not object, that the commissioners would interest themselves to the extent of examining private crossings. In the case now under consideration, it does not appear that the commissioners were even cognizant of the crossing. It was established merely as an accommodation and was used with the road's consent. There was absolutely no evidence of adverse possession.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. *441