The exceptions are set out below as directed by MR. CHIEF JUSTICE GARY in his dissenting opinion:
"(1) That his Honor erred in admitting the testimony of A.N. Bozeman, a witness for the defendant, over objection, as to what he had done with reference to erection of buildings on his property across the street from the property involved; it being respectfully submitted that Mr. Bozeman's property was not in any way involved, and such testimony involved the merits of another case contrary to the principle announced by the Supreme Court in the case of SouthernRailway Co. v. Howell, 79 S.C. page 288; 60 S.E., 677, the same being incompetent, irrelevant, and immaterial.
"(2) That his Honor erred in making the following ruling in passing upon the motions for a directed verdict: `I don't see where the ten years comes in. Of course, that may be a circumstance, but if it was for a month, a few weeks, or a year, or six months, if a person went believing he had the right to do certain things on the railroad's right of way and the officers of the railroad saw that being done, parties asserting the right to do it and stood by when good conscience says you must speak out and allow it to be done, *Page 390 permitted to expend money, I don't think the ten years' proposition comes in at all' — it being submitted that said ruling was contrary to the law of South Carolina, in that his Honor in effect held and charged the jury that a railroad company could be estopped from asserting its title to a right of way by not acting in a month, a few weeks, etc., and that ten years' adverse possession had nothing to do with it, whereas the Court should have held that the railroad company could not be estopped from asserting its right unless it had been guilty of some direct act of misrepresentation or fraud which induced an innocent third party to act to his detriment and that the railway company had a right to bring an action within ten years to clear its right of way of obstructions.
"(3) That his Honor erred in not directing a verdict for the plaintiff and in holding as follows: `I am going to tell the jury this: Gentlemen of the jury, if a party, for instance, a railroad company, has a right of way, if the railroad company sits idly by and allows an innocent party to spend money, believing he had a right to do it on the right of way of the railroad company and the railroad company knowing it and don't speak and object, and allow a party or parties to spend their money on there, knowing it to be done and don't object to it, why it is a matter for them to say in good conscience whether or not he is estopped Whether or not that was done I am going to leave that to the jury' — it being respectfully submitted that said ruling was erroneous in that:
"(a) It was a charge upon the facts, in that the Court, in charging as to the law of estoppel, made direct reference to `a railroad' when the law of estoppel applies to any person or corporation, and in using the language quoted above the Court charged directly upon the facts of the case.
"(b) The doctrine of equitable estoppel had no application to this case, as there was absolutely no evidence upon which to submit this principle to the jury; the railroad company not *Page 391 having been guilty of any misrepresentation of fraudulent act, and the defendant and his predecessors having admitted that they made no inquiry whatever as to the width of the right of way.
"(c) The Court overlooked the fact that the defendant and his predecessors were the owners of the fee and could use the land for any purpose not inconsistent with the railroad's use, and that the matter of an inconsistent use is one of law for the Courts, and that the railroad company would have a right of action any time within the Statute to test the question of inconsistency.
"(4) That his Honor erred in charging the jury as follows: `But I tell you that is what estoppel is; it is where a party, although he may have the best title, if he allows a man, believing he has a title, to go and expend his money on the property of the other man and the other man stands by and allows that done to the other man's injury, when he ought to speak in good conscience, the law says you are estopped' — it being respectfully submitted that this was an erroneous statement of the law, and such law had no application to the case at bar, in that defendant and his predecessors had title to the property and plaintiff had a mere easement, a public trust, to wit, a right of way for public purposes, which it was its duty to keep open for benefit of the people, and, as the defendant and his predecessors had the fee-simple title in said property, plaintiff could only bring action when they had used said property in a manner inconsistent with the railroad's use, and a wooden store building 51 feet from the center of the track was not such an obstruction as to call for drastic action in a moment of time.
"(5) That his Honor erred in refusing plaintiff's third request to charge, as follows: `The jury is charged that, if the Greenville Columbia Railroad took possession of the right of way at the point in question under its charter, and that said railway and its successors, the Columbia Greenville Railroad, occupied it under an unrecorded deed for a *Page 392 period of thirty years or more, then the jury is charged that when said railroad was sold by order of Court that the plaintiff railroad company acquired whatever rights as were possessed by the original companies' — it being submitted that this was a proper statement of the law of the case, and the plaintiff was entitled to have the jury instructed that it had acquired the same rights as the original companies.
"(6) That his Honor erred in charging defendant's first request, as follows: `The paper offered in evidence and upon which the plaintiff relies in this case, is before me for construction. It is my duty to construe it. I hold that it is not a deed, for the reason that it has not witnesses, and that two witnesses are necessary to every valid deed' — it being submitted that his Honor should have charged that the defect in the deed had been cured by more than thirty years' adverse possession, and the paper was a deed because the defect had been cured by more than ten years' adverse possession.
"(7) That his Honor erred in charging the jury as follows: `A man may not have a right, gentlemen; he may think he has the right; you see that's the great importance here in the Court's establishing these rules. A man, as a matter of fact, may not have any right; he may think he has a right. He may not. He may be a trespasser, but he may be honest and really think that he has a right to do so and so. He goes and spends his money, may spend thousands; the other man knows the first man has no right; although the first man honestly believes that he did have the right the second man stands by, knowing the first man had no right to do it, and permits him to innocently go and spend maybe hundreds or thousands of dollars erecting property there at great cost, believing he had a right to do it. The law says that in good conscience the second man must assert his right and say, "You must not do that, that's my property"; and, if he stands by, by acts or words and does anything to encourage the man to go on and doesn't object when the law says he *Page 393 ought to speak up, that's the doctrine of estoppel' — it being submitted that this was error in that:
"A. It was a charge upon the facts, intimating to the jury that defendant had `spent maybe thousands' of dollars, in the absence of any testimony as to the cost of the building erected by defendant's predecessors.
"B. It was an improper and misleading statement of the law as the defendant and his predecessors owned the fee-simple title to the property and knew their rights and should have known the railroad's rights.
"(8) That his Honor erred in not granting a directed verdict for the plaintiff, in that defendant's sole defense was the law of estoppel, and his Honor erred in holding that this issue should go to the jury, inasmuch as one of the main foundations to the assertion of the doctrine of estoppel is innocence and good faith on the part of the one setting up this defense, and in this case defendant and his predecessor admitted that they made no inquiry whatever as to the status of the right of way before purchasing the property and before acting in the premises; that, if defendant and his predecessor knew or ought to have known that the right of way at this point was 100 feet on either side of the center of the track, and were not deceived by any act or words of the plaintiff, then they could not rely upon estoppel, and there was absolutely no evidence of misconduct on the part of the railway company.
"(9) That his Honor, the presiding Judge erred in charging the jury the sixth request of the defendant, as follows: `I charge you that, if one person stands by and sees another erect permanent improvements upon land which said person knows to be his own, and does not object, but permits his neighbor to go on and finish said improvements, then he is estopped by conduct and cannot after that claim the property' — it being submitted that said request embodied a proposition which was not sound law and which was improper and prejudicial in that: *Page 394
"(a) It fixed no time when estoppel will take effect, but limits the time to the finishing of the alleged improvement.
"(b) It was error, in that this was an equity case, and in such cases the equitable doctrine of estoppel will not apply except in cases of nonaction for a period equal to that of the statute of limitations, to wit, ten years or more.
"(c) That under said request the railroad would be required to act immediately, when as a matter of law and equity the railroad would have ten years in which to act." November 11, 1926. The opinion of the Court was delivered by This action was brought by the plaintiff for removal of a building from premises alleged to be a part of its right of way and for an injunction to prevent further encroachments thereon. *Page 395
The complaint sets out two causes of action growing out of the alleged encroachments; one of these being based upon its rights under its charter of 1845, and the other upon a deed from B.F. Perry and others, dated September 12, 1845, which was never recorded.
The defendant, answering, alleged: (1) That he and his predecessors, for more than 70 years prior to the beginning of this action, had used the property described in the complaint up to within 25 feet of the center of the roadbed of the plaintiff, without objection on the part of the plaintiff; (2) that the defendant had erected a permanent building on the said land as described in the complaint, with full knowledge on the part of the plaintiff of such building; (3) that the plaintiff had permitted practically all of its alleged right of way, which had been granted it by Perry and others, to be used and occupied permanently by other parties; (4) that the plaintiff had claimed in the past a right of way on and through the property now owned by the defendant of only 25 feet from the center of the track and that this right of way is sufficient for the uses of the plaintiff — and set up the defense, based on these alleged facts, of equitable estoppel.
Upon motion of the defendant to require the plaintiff to elect which cause of action it would proceed upon, the plaintiff elected to go to trial upon the cause of action founded on the deed.
At the close of the testimony for the plaintiff, the defendant made a motion for a nonsuit, which was overruled by the trial Judge. At the close of all the testimony, the plaintiff moved for a directed verdict on the ground that the doctrine of equitable estoppel was not applicable in this case. The defendant also moved for a directed verdict. Both motions were overruled, and the case was submitted to the jury, who found for the defendant.
The plaintiff now comes to this Court upon appeal by several exceptions, which impute error to the Circuit Court in four main particulars: (1) Error in the admission of *Page 396 certain testimony; (2) error in refusing to direct a verdict for the plaintiff upon the grounds submitted; (3) error in charging the law; (4) error in refusing to charge plaintiff's third request.
As to the second ground of imputed error: The record shows the following facts: In the early part of 1914, J.H. Dean and S.C. Calder, who then owned the property in dispute, erected thereon a small frame one-story wooden store building, the inside line of the building being approximately 51 feet from the center of the track. No objection was made by any employee or officer of the railroad company, although the building was in plain view of the track. Mr. Dean was under the impression that the right of way was only 100 feet from side to side — that is, 50 feet from either side of the track — but made no inquiry of any of the railroad officials. In 1917 Dean and Calder sold the property to the defendant A.F. Day, who afterwards sold it to the Day-Kloeckler Company, who in turn transferred it to Charley Kloeckler, who owns it at the present time and for that reason was made a party to the suit. At the time defendant Day purchased the property, several years after the erection of the building, he had no notice of the claim of the plaintiff to the property. The first complaint made was shortly before this action was commenced on July 1, 1922, approximately eight years after the building was erected.
In 10 R.C.L., 675, we find the following as to estoppel:
"An estoppel may be said to arise when a person executes some deed, or is concerned in or does some act, either or record or in pais, which will preclude him from averring anything to the contrary."
In 21 C.J., 1059, we find:
"In the broad sense of the term `estoppel' is a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by the acts and *Page 397 proceedings of judicial or legislative officers, or by the act of the party himself, either by conventional writing or by representations, express or implied, in pais."
While, as indicated, estoppel may arise in several different ways, it is necessary in the case at bar to consider only estoppel by conduct.
In Bull v. Rowe, 13 S.C. 355, it is said:
"As we understand it, estoppel by conduct is where one party has been induced by the conduct of the other to do or forbear doing something which he would not or would have done but for such conduct of the other party. Bigelow on Estoppel, 480. The conduct which is claimed to operate as an estoppel must have induced action, the disavowal of which would be inequitable, and which, therefore, the party who holds out the inducements is estopped from disavowing. There is no estoppel without fault to the injury of another."
In the present case the respondent contends that, when the railroad company stood by in silence, while the permanent structure was being erected upon its alleged right of way, knowing that such structure was being so erected, and allowed the party erecting it to invest his money and to build the structure without one word of protest, the company was thereafter estopped, by such silence and acquiescence, from asserting its claim to that part of the right of way upon which such permanent structure was erected.
In 10 R.C.L., 782, we find:
"It is a rule almost of universal application that one who stands by and sees another purchase land or enter upon it under a claim of right, and permits such other to make expenditures or improvements under circumstances which would call for notice or protest, cannot afterwards assert his own title against such person."
In 21 C.J., 1160, the following is found:
"One who with knowledge of the facts and without objection suffers another to make improvements or expenditures on, or in connection with, his property, or in derogation *Page 398 of his rights under a claim of title or right, will be estopped to deny such title or right to the prejudice of that other who has acted in reliance on and been misled by his conduct."
In 21 C.J., 1150, the law as to estoppel through silence is thus stated:
"Mere silence of itself will not raise an estoppel. To make the silence of a party operate as an estoppel, the circumstances must have been such as to render it his duty to speak, and there must also be an opportunity to speak. And it is essential that he should have had knowledge of the facts, and that the adverse party should have been ignorant of the truth, and have been misled into doing that which he would not have done but for such silence. Nevertheless an estoppel may arise from silence as well as words. Inaction or silence may under some circumstances amount to a misrepresentation and concealment of the true facts, so as to raise an equitable estoppel. When the silence is of such a character and under such circumstances that it would become a fraud upon the other party to permit the party who has kept silent to deny what his silence has induced the other to believe and act upon, it will operate as an estoppel. The conduct of a party, sought to be made the basis of an estoppel in pais against him by silence, must be viewed in the light of the understanding he then had of his rights, and not in the light of such rights as they may be thereafter determined by the ultimate and conclusive adjudications of the Courts."
In 11 Am. Eng. Ency. of Law (2d Ed.) 421, it is said:
"The most usual application of the doctrine of estoppel in pais arises from the misrepresentation or concealment of material facts on the part of the person to be estopped. Thus, it is a well-settled rule of equity which has been adopted by the Courts of law that where A has, by his acts of representation, and by his silence when he ought to speak out or intentionally or through culpable negligence induced *Page 399 B to believe certain facts to exist, and B has rightfully acted on this belief, so that he will be prejudiced if A is permitted to deny the existence of such facts, A is conclusively estopped to interpose denial thereof." (Italics added.)
In Nicholas v. Austin, 82 Va., 817; 1 S.E., 132, we find this excellent statement of law:
"Silence, where it is so intended, or where it has that effect, to mislead a party, to his disadvantage, and to the other party's advantage, is an equitable estoppel; and passive acquiescence estops equally with active interference. He who is silent when conscience requires him to speak shall be debarred from speaking when conscience requires him to be silent."
In 21 C.J., 1162, the law as to the necessary conditions to support an estoppel through the erection of permanent improvements, is thus stated:
"It is essential that at the time the improvements are made the party against whom the estoppel is claimed should have been aware of his title to or interest in the property improved, or if he was ignorant of his rights that such ignorance was not the result of gross negligence, or that the title was not equally open to the notice of both parties. It is essential also that the party claiming the estoppel should have acted in ignorance of the other's title or interest and been influenced by the conduct of the party against whom the estoppel is claimed. The general rule applies only where the party making the improvements believes in good faith that he has a right to do so. So the rule has no application where the party against whom the estoppel is claimed had no knowledge of the expenditures or improvements, or that they were in contemplation. If the owner, as soon as he is informed of the expenditures or improvements, protests against their continuance and asserts his ownership to the property on which they are being made, no estoppel arises; and of course there can be no estoppel where the improvements are made *Page 400 after express notice has been given that the party sought to be estopped claims the property and over his objections."
Tarrant v. Terry, 1 Bay, 239, was a case wherein fraud in a survey and estoppel by silence were both set up. The Court said:
"That the conduct of Lewis, in the first instance, was fraudulent, in the manner and for the reasons stated by the plaintiff's counsel. That, if the jury should be of the same opinion with him, they might consider Lewis' grant (although the first) void as far as it affected Tarrant's survey. That with respect to the subsequent conduct of Lewis, who was in the neighborhood, and saw Tarrant erecting his mill, under an impression that the land was included in his grant, without once hinting that the land was his, or forbidding him from going on, was, of itself, such a conduct,even if there had been no fraud in the survey, as would have forfeited his claim to the land in question. Therefore, in either point of view, whether the jury consider the fraud in the survey, or the culpable neglect or omission afterwards, the plaintiff was certainly entitled to a verdict." (Italics added.)
In Caldwell v. Williams, Bailey, Eq., 175, the Court said:
"If a man stands by, and sees another build a house on his land, without giving notice, he will lose his land; but I am not satisfied that the same consequence would follow, if he should see him clear and cultivate it for a year or two, and erect such temporary buildings as might be necessary for the purposes of that cultivation."
However, the appellant's counsel, in the trial of the case and before this Court on appeal, contended with great earnestness that, whatever may be the law of equitable estoppel, there can be no application of the doctrine to a railroad because of the use of its right of way by the holder of the fee therein, even though he has erected a permanent structure thereon, until the ten-year period necessary to claim by adverse possession has run, thus making a distinction in *Page 401 this respect between railroad companies and other property owners.
We find no authority to support this contention, although we have examined all cases cited by appellant's counsel in support of his position. In some of these cases the title to the premises involved was claimed by adverse possession, and of course in such cases it was necessary for the full statutory period to run. Such a case is that of Harman v.Southern Railway Co., 72 S.C. 235; 51 S.E., 689, upon which the appellant particularly relied. In that case the defendant had erected a fence on the right of way and was using a part of the right of way as a pasture. The Court, quoting with approval the earlier case of Railroad Co. v.Beaudrot, 63 S.C. 266; 41 S.E., 299, said that such an assertion of right to exclusive occupancy of the land was not compatible with the right of easement belonging to the railroad company, and, if such adverse holding should run for the statutory period, the easement would be defeated. A similar state of facts existed in the Beaudrot case. It is clear, however, that those cases are not in point with the case at bar. The claim in those cases rested on adverse possession. The claim in the case at bar rests on equitable estoppel.
The case of Railroad Co. v. Land Co., 109 S.C. 444;96 S.E., 188, is instructive. In that case the owners of the fee in the railroad right of way continued, after the railroad was built, to use the right of way up to the track. They planted some of it and inclosed a part of it by a wire fence for pasture. They erected no structure, however, of a permanent nature on the right of way, nor did they make any use of it that was inconsistent with the railroad's use and occupancy of it; and they did not give to the railroad any notice of an adverse claim by them to the easement of the road in the right of way, until a street was laid out on a portion of the right of way. The Court, in speaking of the law governing in a case of that kind, said: *Page 402
"According to the decisions of this Court, the owner of the fee in a railroad right of way has the right to use so much thereof as is not in the actual use and occupancy of the railroad company, provided the use be not inconsistent with the claim of right of way for the railroad purposes. It follows from this, and the rule that a right of way of a railroad, having been acquired for a public purpose, cannot be lost by prescriptive use or adverse possession unless by the erection of a permanent structure accompanied by notice to the railroad company of an intention to claim adversely to its right, that, under the facts stated, at no time did the plaintiff have a cause of action against the defendants or their predecessors in title until the street in question was constructed and attempted to be used under the assertion of a right to do so."
It will be observed, as held in this case, that adverse possession may run against a railroad company in favor of one claiming adversely to its easement in its right of way, when such party claiming (1) has erected upon such right of way a permanent structure, and (2) has given notice to the railroad company of an intention to claim adversely to its right. Only from the time of such notice the statute begins to run, and the railroad company may within the period of ten years bring action to oust the party claiming by adverse possession. But in such case the possession is knowingly hostile to the railroad company, and the principle of equitable estoppel is not applicable. "The estoppel may arise, even though the period of acquiescence is very short." 21 C.J., 1161. See, also, Champv. Nicholas County Court, 72 W. Va., 475; 78 S.E., 361.
In the case of Despard v. Despard, 53 W. Va., 443;44 S.E., 448, the Court quotes with approval from Herman on Estoppel and Res Judicata, Vol. 2, § 1061, as follows:
"Acquiescence in a transaction may bar a party of his relief in a very short period. Thus, if one has knowledge of an act, or it is done with his full approbation, he cannot *Page 403 afterwards have relief. He is estopped by his acquiescence, and cannot undo that which has been done. So, if a party stands by, and sees another dealing with property in a manner inconsistent with his rights, and makes no objection, he cannot afterwards have relief. His silence permits or encourages others to part with their money or property, and he cannot complain that his interests are affected. His silence is acquiscence and it estops him."
The case of Railroad Co. v. Victor Manufacturing Co.,93 S.C. 397; 76 S.E., 1091, is somewhat similar to the case at bar. In that case the railroad company claimed, through deed from Mrs. McKittrick executed in 1871, a right of way 200 feet wide. In 1895 the defendant purchased a part of the McKittrick land lying on the railroad and from time to time thereafter erected fifteen cottages thereon. These cottages were located on a strip of land lying between lines 50 and 100 feet from the center of the railroad track. Three or four of them were built in the fall of 1895, eight or nine in 1899 and three in 1904. Plaintiff made no objection, either while the cottages were being built or afterwards, until the commencement of the action, although they were in plain view of the railroad and it could have been easily seen that they were within 100 feet of the track. In January, 1905, an action was brought by the railroad company to enjoin the defendant from further using the strip of land lying between lines 50 feet and 100 feet from the center of the railroad track, which land was claimed by the plaintiff as part of the right of way, and to require the removal of the houses built thereon by defendant. The defendant set up, among other defenses, those of misrepresentation in the procurement of the deed from Mrs. McKittrick and estoppel. On the question of estoppel, the Court said:
"Aside from the misrepresentation, the facts above stated, and the circumstances of the use of the right of way beyond the 50 foot line by defendant, and others, even since the *Page 404 execution of Mrs. McKittrick's deed, and the character of the structures placed thereon with the knowledge of plaintiffs, without objection by them, make out a clear case of estoppel. The character of the buildings forbids any other conclusion than that the railroad company must have known that the owners were building them under a belief that they had the right to do so. The company knew, or ought to have known, its own rights, for it had in its possession the McKittrick deed."
No reference was made to the lapsing of the ten-year statutory period.
In Marines v. Goblet, 31 S.C. 153; 9 S.E., 803; 17 Am. St. Rep., 22, the Court approved the following instruction to the jury:
"That, if the jury find that the plaintiffs deliberately stood by for years and without objection saw Goblet or others buying the land in dispute, and making improvements thereon, under the supposition that they had a good title, then the plaintiffs will now be estopped to set up their claim against them."
The case of C.N. L. Railroad Co. v. Laurens CottonMills, 82 S.C. 24; 61 S.E., 1089, relied upon by the defendant, seems to be in point. In that case an action was brought by the railroad company to have removed from its right of way some thirty or forty store buildings erected thereon by the defendant, and for an injunction to restrain the defendant from further interfering with the plaintiff's right of way. The defendant claimed title to the land by purchase, and also by adverse possession, and that the improvements thereon complained of by the plaintiff were made in full view and with full knowledge on the part of the plaintiff, and that the plaintiff acquiesced in the erection of such improvements. On the trial of the case, one of the defenses being equitable estoppel, the trial Judge, at request of the plaintiff, charged the jury as follows: *Page 405
"That the plaintiff cannot be estopped from asserting its rights in this case unless the following conditions existed at the time of putting the improvements on the right of way, to wit: (1) Unless the alleged silence was practiced by the authorities of the railroad company with a knowledge of the rights of the railroad company, both in fact and in law; and (2) unless Mr. Lucas, who is shown to have been acting for the cotton mill company, was ignorant in fact of the right of the railroad company; and (3) unless such silence was practiced with the intention that the cotton mill company should act upon it; and (4) unless the cotton mill company was induced by such silence so to act."
On appeal, the Supreme Court affirmed this charge as being a correct statement of the law, and further held that the following charge by the trial Judge as to equitable estoppel, in connection with the above, and which was complained of as error by the plaintiff, was also a correct proposition of law:
"I charge you that if one person stands by and sees another erect permanent improvements upon land which said person knows to be his own, and does not object, but permits his neighbor to go on and finish said improvements, then he is estopped by conduct and cannot after that claim the property."
The appellant contends that the doctrine of estoppel applied in that case, for the reason only that the houses had been erected upon the right of way of the railroad company for a period of ten years or more. We do not think this contention is correct. It is true that fifteen years elapsed from the time the houses were erected upon the right of way before the action was begun; but the Court charged the jury, which charge was approved by the Supreme Court as being the law applicable in the case, that, if one "permits his neighbor to go on and finish said improvements, then he is estopped by conduct and cannot after that claim the property." (Italics added.) Nowhere does it appear that the *Page 406 Court considered the defendant's possession of the premises for the statutory period as an element of the estoppel.
We conclude that the running of the ten-year period as for adverse possession is not a necessary element of equitable estoppel, and that equitable estoppel may be applied to a railroad company, with reference to the easement in its right of way, the same as to private owners of property. In the case at bar there was some evidence of facts tending to create estoppel by the conduct of the officers of the railroad company in standing by in silence, with knowledge, and without protest, while another, relying on such silence and in good faith, erected a permanent structure upon the right of way. The question of estoppel was properly submitted to the jury, and the exceptions upon which this specification of error is based are overruled, as are all other exceptions in so far as they relate to the law of estoppel. We may remark in passing that a fuller charge as to the law of estoppel would have been desirable, but neither party to the suit called the trial Judge's attention to the matter.
As to the first ground of imputed error: The appellant complains by its first exception that the trial Judge committed reversible error in the admission of the testimony of A.N. Bozeman, a witness for the defendant, over the objection of the plaintiff. The following appears in the record:
"A.N. Bozeman, sworn, says: I have owned and still own some of this McBee property, across the street and on the same side of the track from defendant's property.
"Mr. Price: We object to testimony being offered as to any other property not involved in this action.
"After argument, the Court ruled: I think I will let you bring in testimony of lots just adjoining, not to go away up and down, but just in that immediate vicinity.
"I bought my property in 1902, and built a store building thereon 41 feet from the center of the track. Mr. Price *Page 407 was my attorney and advised me my title was good. The section master in a little while served me with notice to move the building 100 feet away, which I refused to do, and the building is still there."
As said in Lynn v. Thomson, 17 S.C. 129:
"It is difficult to say distinctly what constitutes relevancy, so that a definite rule may be established by which the matter in every case may be at once determined. It must therefore be left in a great measure to the discretion of the presiding Judge, subject to the right and privilege of the party to show the relevancy of the question when objected to."
While it is clear that the admission of the irrelevant testimony of Bozeman was error, we do not think that, under the undisputed facts of the case, it did the plaintiff any harm. The testimony of the defendant, tending to establish his defense of estoppel, was undenied by the plaintiff; and the testimony of Bozeman added nothing to the conceded facts. This exception cannot be sustained.
As to the third ground of imputed error: What we have said in discussing the second ground of imputed error disposes of the exception upon which this ground of alleged error is based.
As to the fourth ground of imputed error in refusing to charge the plaintiff's third request: The plaintiff elected to go to trial on its cause of action founded upon its deed rather than on the cause founded upon its charter, and no error was committed by the Circuit Judge in refusing to charge the request of plaintiff relating to its charter.
There are several grounds of imputed error which we deem it unnecessary to discuss in detail, as they are without merit or relate to error not prejudicial to the appellant.
All exceptions are overruled, and the judgment of this Court is that the judgment of the Circuit Court be affirmed.
MESSRS. JUSTICES WATTS, COTHRAN and BLEASE concur. *Page 408