This is an action brought by the Southern Railway Company to remove an obstruction from its right of way near Greene Avenue in the City of Greenville. The defendant purchased the property some time after the erection of the building, and had no actual notice of the railroad's claim at the time of the purchase. The case was tried by a jury, and a verdict was returned in favor of the defendant.
The facts in the case are almost entirely admitted. In the early part of 1914, J. Harry Dean and S.C. Calder, who then owned the property, erected a small frame one-story wooden store building on their lot, 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 railway company, although the building was in plain view of the track. Mr. Dean was under the impressionthat the right of way was only 100 feet from side to side,but said that he made no inquiry of any kind to any officialof the plaintiff company. (Italics added.) The first complaint made according to the record was shortly before the action was commenced on July 1, 1922, approximately eight years after the building was erected.
The complaint fully set forth two causes of action growing out of the encroachment — one based upon the charter rights of 1845 and the other upon a deed from B.F. Perry, et al., dated September 12, 1845, which was never recorded. The complaint prayed for the necessary relief by removal and injunction.
The defendant herein, not waiving its right to insist upon the order of election as heretofore, answering the complaint herein respectfully shows:
"(1) That paragraph 1 of the complaint is admitted.
"(2) That each and every allegation of the complaint is denied except as hereinafter admitted.
"(3) The defendant admits that it is in possession of a lot of land as described in paragraph 8 of the complaint. *Page 409
"(4) The defendant alleges: That he and his predecessors for more than 70 years prior to the beginning of this action, had used without objection on the part of the plaintiff or its predecessors the property described in the complaint up to within 25 feet of the center of the roadbed of the plaintiff. That by reason of its conduct the plaintiff is thereby estopped from asserting any claim or right of ownership to the property described in the complaint as belonging to the defendant.
"(5) That the defendant has erected a permanent building upon the land as described in the complaint, with full knowledge on the part of the plaintiff of said building. That the plaintiff, by reason of its acquiescence, is thereby estopped from making any claim or demand against the defendant, and is further estopped by its conduct from prosecuting any proceeding to compel the removal of said building.
"(6) That the plaintiff has permitted practically all of its alleged right of way, which was granted to defendant by B.F. Perry and others, to be used and occupied permanently by other parties. That it is thereby estopped by its conduct from making any claim to that portion of its alleged right of way, which is now owned and occupied by the defendant.
"(7) That the plaintiff has claimed in the past a right of way on and through the property now owned by the defendant of 25 feet from the center of the track. That said right of way was and is sufficient for the use and demands of the plaintiff. That the plaintiff has not claimed more than said 25 feet, and is now estopped by its conduct from making claim to any greater width for its right of way."
Motion was made by defendant to require plaintiff to elect which cause of action it would proceed under, and election was made to join issue upon the cause of action founded upon the unrecorded deed of B.F. Perry et al.
Counsel agree upon the following propositions with reference to the trial of the case:
"(1) That the complaint be amended by making Charley Kloeckler a party defendant, he having purchased the land *Page 410 since the suit was instituted with knowledge of the same, but the case is being tried as against Day, Kloecker, the present owner, being made a party so as to clear title one way or the other.
"(2) It is agreed that plaintiff may offer in evidence without formal proof the written agreement or deed as to right of way from B.F. Perry et al., dated September 12, 1849; the instrument being admitted for what it is worth.
"(3) It is agreed that both parties claim from a common source, to wit, Vardry McBee, one of the parties who signed the right of way document September 12, 1845, and that either party may offer any deeds or record of deeds in the claim of title without formal proof.
"(4) It is understood that plaintiff under defendant's motion agrees to elect to proceed under the cause of action based upon the deed above referred to.
"(5) It is agreed that Southern Railway Company purchased on July 10, 1894, such property rights and franchises of the Columbia Greenville Railway Company, as were capable of being conveyed under the decretal order of sale."
P.A. McDavid, a witness for the plaintiff, testified: "I am 84 years of age and remember when the Greenville Columbia Road was completed. It was in operation about 1850 or 1851."
Cross-examination: "There was only a single track then and I do not think there has been any change."
Plaintiff next asked to offer in evidence the charter of 1845 for the Columbia Greenville Railroad, but it was objected to by Mr. Cothran upon the ground that plaintiff was relying upon the right of way given by deed and that the charter had nothing to do with it. After considerable argument, the Court sustained the objection, holding: "I will have to sustain the objection. It strikes me that the question of estoppel is what this case hinges upon." Plaintiff rested. *Page 411
Defendant moved for a nonsuit upon the following grounds:
"(1) The deed or agreement which is relied on by the plaintiff is not a deed because it is not witnessed. The most that can be said of it is that it is a permissive agreement for the Columbia Greenville Railroad Company alone to enter into possession of this property. Now, if your Honor will refer to this paper, you will notice at a glance there on the left of the signatures that there are no witnesses.
"(2) This paper agreement to the Greenville Columbia Railroad, the right of way we grant and release to the said Greenville Columbia Railroad Company, the right of way of sufficient width for the tracks, cuts, and embankments of the said road, and so forth, not to exceed 100 feet on each side. Now, the proof fails to show that there was any necessity for any more than they really have. But I take it is incumbent on the plaintiff to show that, if he wants more than he already has under that deed, he must show the necessity for it."
The motion was refused.
The instrument of writing, under which the plaintiff's predecessor entered into possession of the land therein described, is as follows:
"State of South Carolina.
"Whereas, the Greenville Columbia Railroad Company are about locating their road; and
"Whereas, its passage over the land of the undersigned may greatly benefit them:
"Therefore, know all men by these presents, that the undersigned, in consideration of the premises, have given, granted, and released, and by these presents do give, grant, and release to the said Greenville Columbia Railroad Company, the right of way sufficient width for the track, cuts, and embankments of the said road, as also for turnouts, and all other extensions and enlargements, or repair of the *Page 412 same from time to time, not to exceed 100 feet on each side, with the right to use the earth and stone within the said track, for the construction, extension, or repair of the same road.
"In witness whereof, the undersigned have subscribed their names and affixed their seals, as of and on the 12th day of September, A.D. 1849.
"Signed, sealed, and delivered in the presence of:
"B.F. Perry. [Seal.] "C.F. Townes. [Seal.] "D. Hoke. [Seal.] "F.F. Beattie. [Seal.] "Vardry McBee. [Seal.] "Wm. Jacobs. [Seal.] "Adeline W. Reed. [Seal.] "Richard Gantt. [Seal.] "John Markly. [Seal.] "James H. Payne. [Seal.] "David McCullough. [Seal.] "David Roberts. [Seal.]
The first question we will discuss is the proper construction of the said instrument of writing.
There are two ways of acquiring title to such an easement as that in question, to wit, by deed and by prescription.
The deed shows upon its face that it is defective in form. The plaintiff contends that it and its predecessors have been in the continuous possession of the land in question for the purpose of operating a railroad for about 75 years; and that the plaintiff has operated its railroad uninterruptedly and adversely to all other claimants for more than 20 years.
In Bradley v. Jennings, 15 Rich., 34, the distinction between the two classes of presumptions is thus stated:
"Only three months were wanting to complete the full period of 20 years from the maturity of the single bill in this case to the commencement of this suit. The want of this short term, however, prevents the application of an *Page 413 arbitrary rule, just as the want of a single day would prevent the bar of the statute of limitations. Full 20 years is the time which the law, mostly from consideration of policy, has fixed as the basis for the artificial presumption, which it raises independent of belief. Time short of this, when connected with other circumstances, may create a natural presumption by producing honest belief.
"`The lapse of 20 years is sufficient to raise the presumption of a grant from the State, of the satisfaction of a bond, mortgage, or judgment of the grant of a franchise or the payment of a legacy, or almost anything else that is necessary to quiet the title of property. * * * It is said we cannot presume either a general administration or a valid will. It is hardly necessary to say that legal presumptions are not founded on actual belief. * * * Presumptions must be sometimes made against the well-known truth of the fact. If 20 years have elapsed without the payment of interest or any acknowledgment of a bond, we must presume it paid, notwithstanding the fullest conviction that it never has been paid.' Riddlehoover v.Kinard, 1 Hill's Eq., 376, cited in Corbett v. Fogle, 72 S.C. 212;51 S.E., 884; Young v. McNeill, 78 S.C. 143;59 S.E., 986; Powers v. Smith, 80 S.C. 110;61 S.E., 222; Lewis v. Pope, 86 S.C. 285; 68 S.E., 680; Glennv. Walker, 113 S.C. 1; 100 S.E., 706."
In Lewis v. Pope, 86 S.C. 285; 68 S.E., 680, this Court quotes with approval the following language used by Colcock, J., who delivered the opinion of the Court inStockdale v. Young, 3 Strob., 501, note:
"Presumptions may supply the place of positive proof. There are two kinds of presumptions. The one may be called a legal presumption, the other a persumption of fact. The first is wholly unconnected with the idea of belief — in fact, it is opposed to it. It is a mere rule of law to supply those defects of our nature and the nature of things, which cannot otherwise be guarded against — *Page 414 under this rule the party must rely on a long-continued and uninterrupted possession. The rule invests such possessionwith the title. [Italics added.] I am never led to the consideration of this subject, but my mind involuntarily recurs to the peculiarly happy and lucid exposition of the rule by Lord Chancellor Erskine; in the case of 12 Vesey, 266, 267, he observes that it has been said, you cannot presume unless you believe. `But it is because there are no means of creating belief or disbelief that such general presumptions are raised upon subjects of which there is no record or written muniment. Therefore, upon the weakness and infirmity of all human tribunals, judging of matters of antiquity, instead of belief (which must be the formation of the judgment upon a recent transaction), where the circumstances are incapable of forming anything like belief, the legal presumption holds the place of particularand individual belief. [Italics added.] Mankind, from the infirmity and necessity of their situation, must, for the preservation of their property and rights, have recourse to some general principle to take the place of individual and specific belief, which can hold only as to matters within our own time, upon which a conclusion can be formed from particular and individual knowledge.'"
The case of Harman v. Southern Railway, 72 S.C. 235;51 S.E., 691, is conclusive as to the effect of possession under a defective and an unrecorded deed granting a right of way. In that case, the deed was executed in 1848 to the same company as in the present case, and using almost the same words. In the opinion, which was unanimous, the Court used the following language:
"Our construction of the deed is, that it was the intention of the grantor to convey such rights, to the full extent, as the railroad company would be presumed to have acquired, under the statute, in the absence of a written contract, between the company and the owner of the land, through which the railroad was constructed. The plaintiff cannot be regarded *Page 415 as a purchaser for valuable consideration without notice of the railroad company's right of way, because he had actual notice that the railroad was being operated through said land, at the time of his purchase, and he had constructive notice, or is presumed to have known, that the company's right of way, in the absence of a written contract, extended 100 feet on each side of the center of its track. In any event, he had knowledge of such facts as were sufficient to put him on inquiry, which, if pursued with due diligence, would have led to knowledge of the company's rights, and this is the equivalent of notice."
The foregoing authorities are to the effect that, after the plaintiff and his predecessors had operated the road openly, continuously, and undisturbed for more than 20 years, the said effective instrument of writing had the same force and effect as if it had been drawn in proper form and had beenduly recorded.
Furthermore, the record contains this statement: "Mr. Dean was under the impression that the right of way was only 100 feet from side to side, but said that he made no inquiry of any kind to any official of the plaintiff company" — thus showing that he had actual notice of the fact that the plaintiff was operating its railroad, and that he was satisfied of the extent of the right of way without makingany inquiry, which, if it had been properly pursued, wouldhave led to knowledge of the fact that the plaintiff's rightof way extended 100 feet on each side of its track.
Paragraph 4 of defendant's answer is as follows:
"The defendant alleges: That he and his predecessors for more than 70 years prior to the beginning of this action had used without objection on the part of the plaintiff or its predecessors the property described in the complaint up to within 25 feet of the center of the roadbed of the plaintiff. That by reason of its conduct the plaintiff is thereby estopped from asserting any claim or right of ownership *Page 416 to the property described in the complaint as belonging to the defendant."
The fact that the defendant and his predecessors may have been the owners of the land in fee does not show that their right to the land in fee was paramount to the plaintiff's right of way. On the contrary, the general rule is that the right of way of the railroad company is paramount to the fee held by the grantor, as * * * "the owner of the fee has the right to the use and possession of the land covered by the right of way for any purpose not incompatible withthe purposes for which the easement was granted or acquired."Southern Ry. v. Beaudrot, 63 S.C. 269;41 S.E., 300.
To the same effect is the case of Atlanta Charlotte AirLine Ry. Co. v. Limestone Globe Land Co., et al., 109 S.C. 444;96 S.E., 188, in which this Court uses the following language:
"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 noticeto the railroad company of an intention to claim adverselyto 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 assertionof a right to do so. As the statute of limitations does not begin to run until a cause of action has accrued, plaintiff's action is not barred. And, for the reasons already stated, the possession and use of the right of way by defendants and their predecessors in title was not adverse, *Page 417 and, therefore, their claim by adverse possession cannot be sustained." (Italics added).
The fifth paragraph of the answer is as follows:
"That the defendant has erected a permanent building upon the land as described in the complaint, with full knowledge on the part of the plaintiff of said building. That the plaintiff by reason of its acquiescence is thereby estopped from making any claim or demand against the defendant and is further estopped by its conduct from prosecuting any proceeding to compel the removal of said building."
The building in question is described as "a small frame one-story wooden store building" and was erected in 1914, and the action herein was commenced in July, 1922, approximately 8 years after the building was erected. There wasno testimony to the effect that notice was given that theparty erecting the building intended to claim it as his own;nor did he give any notice whatever in regard to the building.
The facts in this case are materially different from those in Railroad Co. v. Cotton Mills, 82 S.C. 24;61 S.E., 1089, upon which the respondent's attorneys mainly rely, in which the answer of the defendant therein alleges:
"It admits that it erected certain houses and raised a pond of water in said premises situate in the City of Laurens, not far from the railroad operated by the plaintiff, but it alleges that said improvements are upon the land owned in fee by this defendant, in which this plaintiff has no interest whatever, by easement or otherwise; it further alleges that the title of said land was acquired by this defendant by purchase, and this defendant and persons under whom it claims have been in open, notorious and exclusive possession of said land for a period of more than twenty years before the commencement of this action, and that plaintiff nor its grantors has exercised any acts of ownership over the same for 10, 20, or 40 years before the commencement of this action. *Page 418
"The defendant further alleges: `That the improvements were made in full view and with full knowledge on thepart of the plaintiff, and that plaintiff acquiesced in theerection of said improvements, and consented and assistedin the said work, and is estopped to question the title of defendant or its rights to occupy and enjoy the said premises' * * * (Italics added).
"The defendant alleges that the right of way supposed to have been acquired by plaintiff was abandoned and all rightsthereto were lost and forfeited." (Italics added).
The syllabus in that case, which correctly states the ruling of the Court, is as follows:
"A railroad company, knowing that another is erectingpermanent improvements on its right of way, which doesnot object, is estopped from afterwards asserting its right to so much of its easement as is occupied by such improvements. If such improvements are allowed to remain on its right of way for 10 years, being used adversely, the company is barred by the statute from using the way so occupied."
It will be observed that the defendant and his predecessors have been in possession of the building for only about 8 years, while in the case upon which the respondent's attorneys principally rely, were in adverse possession of the property therein described for more than 10 years.
We have not deemed it necessary to consider the exceptions in detail, but they will be incorporated in the report of the case.
The judgment of this Court should be that the judgment of the Circuit Court be reversed.
When the foregoing opinion reached Mr. Justice Stabler for consideration, he filed a dissenting opinion, which requires us to set forth the following additional reasons for our conclusion:
We desire to call special attention to the following undisputed facts set out in the record: *Page 419
"Mr. Dean was under the impression that the right of way was only 100 feet from side to side, but said that he made no inquiry of any kind to any official of plaintiff company.
"It is agreed that Southern Railway Company purchased on July 10, 1894, such property, rights, and franchises of the Columbia Greenville Railway Company as were capable of being conveyed under the decretal order of sale.
"It is agreed that both parties claim from a common source, to wit, Vardry McBee, one of the parties who signed the right of way document, September 12, 1845, and that either party may offer any deeds or record of deeds in the chain of title without formal proof."
Our first proposition is that the case of Railroad v. CottonMills, 82 S.C. 24; 61 S.E., 1089; 62 S.E., 1119, is not applicable to the facts in this case. In addition to the quotation which we have already made from this case sustaining this proposition, we quote with approval the following from the argument of Mr. Tompkins, one of the attorneys for the appellants, which is as follows:
"In that case the charge of Judge Watts on the law of estoppel was upheld. That case is easily distinguished from the case at bar. There was evidence of an estoppel which was properly submitted to the jury. The defendant contended and offered proof to sustain the allegations of its owner that the railroad company had stood by and permitted the erection of thirty or forty dwelling houses, a large office building, a store building, a large pond, and other permanent improvements valued at $50,000. It was not only alleged that the railroad knew of the erection of these improvements, but that its agents actually consented and assisted in doing certain acts which were necessary to the erection of the same. It was further contended that the railroad had abandoned its right of way. Some of the houses were within 15 feet of the tracks and at least three had been erected 22 puted facts set out in the record: *Page 420 opinion of Mr. Justice Woods clearly shows the main reason why the law of estoppel was applicable in that case. `There was some evidence of estoppel by conduct of the officers of the railroad company, and taking the charge of the Circuit Judge as a whole, the law of estoppel was correctly stated.' Railway v. Cotton Mill, supra, 82 S.C. page 39; 61 S.E., 1096."
It will thus be seen that the defendants acquired a title by adverse possession for more than 10 years, and that the result in that case was not dependent upon the question of equitable estoppel.
Our next proposition is that the decisions in the case ofRailway Co. v. Limestone et al., 109 S.C. 444;96 S.E., 188, shows conclusively that the plaintiff was not estopped by its conduct. We have already quoted at length from that cases. Mr. Justice Stabler thus quotes from it also:
"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 noticeto the railroad company of an intention to claim adverselyto 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."
After this quotation he thus proceeds to state the law:
"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 *Page 421 a permanent structure, and (2) has given notice to the railroadcompany 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 10 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 estoppelis not applicable." (Italics added).
In the case of Beck v. Railroad Co., 99 S.C. 310;83 S.E., 335, Mr. Justice Watts, who delivered the opinion of the Court, used the following language:
"Both parties claim from the same source, J. Adger Smyth. The plaintiff could not have any higher right than J. Adger Smyth. The Eutawville Railroad went into possession under this agreement. Their entry was lawful, not tortious; the defendant is the successor in the interest of that road, and whatever rights it had acquired passed to the defendant. By that agreement one hundred feet was acquired from the center of the track. When the defendant purchased years after the road was constructed she knew the road was there. The charter gives the right to acquire 75 feet from the center of the roadbed by condemnation. This agreement along with others was recorded in the office of register of mesne conveyance for Sumter County, and while not properly prepared for record so that the recording would be constructive notice to subsequent purchasers, still it was a circumstance that should have been left to the jury to say whether they were such as would put her on inquiry."
In Volume 2, § 803, of Pom., Eq. Jur., the author of that philosophical work says:
"When all the varieties of equitable estoppel are compared, it will be found, I think, that the doctrine rests upon the following general principle: When one of two innocent persons — that is, persons each guiltless of an intentional moral wrong — must suffer a loss it must be borne by that *Page 422 one of them who by his conduct, acts, or omissions has rendered the injury possible."
This language is quoted with approval in case ofChambers v. Bookman, 67 S.C. 432; 46 S.E., 39, which throws much light upon the questions involved in the present case.
The defendant had the right to use the plaintiff's right of way for temporary purposes, but he committed a tort when he erected a permanent structure thereon. It is not disputed that it was the duty of the defendant to give notice to the plaintiff of his intention to erect a permanent building on its right of way. If the defendant had given such notice, then the plaintiff could have protected its rights. The authorities cited both by Mr. Justice Stabler and myself show that the defendant was responsible for the litigation by his tortious acts.
We have heretofore shown that the plaintiff's right of way under the unrecorded deed was notice to the public just as if said deed had been properly recorded.
There was also another source of notice to the defendant, or at least of such facts as were sufficient to put him on inquiry, which, if pursued with due diligence, would have led to notice of the fact that the plaintiff's right of way extends 100 feet on each side of the railroad track. The charter of the plaintiff, which was properly recorded, shows that it is the owner and successor of the rights and franchises described in the charter of the Greenville Columbia Railroad which was granted in 1845 and which contains the following provision:
"That, in the absence of any written contract between the said company and the owner or owners of land, through which the said railroad may be constructed, in relation to said land, it shall be presumed that the land upon which the said railroad may be constructed, together with one hundred feet on each side of the center of said road, has been granted to the said company by the owner or owners thereof, and *Page 423 the said company shall have good right and title to the same (and shall have, hold and enjoy the same) unto them and their successors, so long as the same may be used only for the purposes of the said road and no longer. * * *"
For the foregoing reasons I dissent.