37 S.C. 382 | S.C. | 1892
The opinion of the court was delivered by
The appeal in this case presents the general question, whether the Circuit Judge erred in overruling a demurrer based upon the ground, that the complaint does not state facts sufficient to constitute a cause of action. For a proper solution of this question, it will be necessary to set out only so much of the complaint, which is for the purpose of recovering possession of real estate, as is claimed to be defective, omitting those portions of the complaint which are either formal in their character or do not throw any light upon the question presented.
After alleging, in the third paragraph of the complaint, that the defendant company “entered into and upon said premises, and unlawfully, and against the consent of said plaintiffs, took possession thereof, for the purpose of constructing and operating a railroad,” the plaintiffs, in the fourth paragraph, allege as follows: “That the defendant, the Augusta and Knoxville Railroad Company, before entering upon the premises of the plaintiffs for the purpose of constructing a railroad, did not notify the plaintiffs, or any of them, that the right of way over such premises was, or would be, required for such purpose nor were the executors of the will of James Tompkins, deceased (under which will plaintiffs claim), so notified, but, on the contrary, the said plaintiffs, as soon as it was ascertained that said railroad would probably extend or run through said premises, and before the defendant, the Augusta and Knoxville Railroad Company, had entered upon the same for the purpose of constructing their said road, some of said plaintiffs formally notified the officers of the said Augusta and Knoxville Railroad, that plaintiffs objected to said Augusta and Knoxville Railroad Company entering upon their said premises for the purpose of constructing their said railroad; and, further, that if it were the purpose of the said Augusta and Knoxville Railroad to enter upon said premises, for the purpose of constructing their said railroad, that before so doing, they (the said Augusta and Knoxville Railroad Company) must proceed in accordance with the requirements of the law. That said
As we gather from the argument in behalf of appellants, the complaint is claimed to be defective upon three grounds: 1st. Because there is no allegation that plaintiffs signified, in writing, their refusal of consent for the defendants to enter upon the lands for the purpose of constructing their railroad. 2d. .That there is no allegation “that the plaintiffs have been defeated by the defendants in any endeavor to secure compensation under the statute; in other words, the complaint does not show that the plaintiffs have exhausted the remedy allowed by statute to obtain compensation.” 3d. Because the complaint shows on its face “that the defendants did not enter for the .deprivation of a right, or for the perpetration of a wrong, but for a lawful purpose, to wit, Tor the purpose of constructing and operating a railroad/ as authorized” by their charter.
In the next section it is provided, that, if the owner shall signify his refusal of consent, then the corporation requiring the right of way shall apply by petition to the judge of the Circuit wherein the lands are situated for the empanneling of a jury, to ascertain the amount which shall be paid, as just compensation for the right of way required; and, after prescribing the mode of proceeding in such a case, in section 1556 it is declared that, “upon payment of the compensation thus ascertained by a jury, the right of way over said lands, or the use of said lands for the purposes for which the same were- required, shall vest in the person or corporation,” &c. And then section 1558 provides as follows: 1 ‘Nothing herein contained shall be construed to prevent entry upon any lands for purposes of survey and location; and 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 a highway without previous compensation, the said owner shall have the right, after the highway shall have been constructed, to demand compensation,” &c.
Now, as the Constitution, in art. I., sec. 23, forbids the taking of private property for the use of a corporation, “without the consent of the owner, or a just compensation being made therefor;” and then proceeds, in the same section, to invest the general assembly with power to make laws securing to corporations the right of way over the lauds of other persons, but requiring that, in all cases, a just compensation shall “be first made to the owner,” it seems to us that whenever a corporation has been invested by its charter with the power to take or condemn the land of another for its right of way or other purposes, it can do so lawfully only in the manner prescribed in sections 1550-59, inclusive; and if a corporation enters upon the land of another in any other way, -without his consent, except for the purposes of survey and location, such corporation becomes a trespasser, and may be proceeded against as such. So that the question whether the first ground of the demurrer can be sustained, turns upon the inquiry whether the complaint
For a like reason, we do not think the third ground can be sustained after the complaint is amended so as to allege properly that the entry was made without the consent of plaintiffs. It seems to us that the Constitution, read in connection with the statutory provisions above referred to, practically amount to a prohibition of any person or corporation taking possession of the land of another for the purpose of constructing a railroad, or any other purpose (except survey and location), without
The judgment of this court is, that the judgment of the Circuit Court overruling the demurrer be reversed, and that the case be remanded to that court, -with instructions to sustain the demurrer upon the first ground above stated, with leave to amend, as is hereinabove indicated.