July 18, 1905. The opinion of the Court was delivered by The facts are thus set out in the argument of the appellant's attorneys:
"This action was commenced September 14, 1903, by the service of the summons and complaint on the defendant. The complaint alleges (par. 1), the corporate capacity of the defendant; (par. 2) plaintiff's ownership and possession of the tract of land described in the complaint; (par. 3) defendant's ownership and operation of the railroad known *Page 233 as the Columbia and Greenville Railroad, running through said tract of land (par. 4) the unlawful and wilful entry of defendant on said tract of land, and its unlawful and wilful cutting down, digging up and destruction of plaintiff's pasture fence.
"Defendant's answer admits the allegations of par. 1 and par. 3 of the complaint, but denies the allegations of par. 2 and par. 4.
"Plaintiff introduced evidence tending to show his title to and ownership of the land described in the complaint, under two deeds of conveyance thereof from J.B. Fellers, judge of probate, dated in 1880 and 1881, and purporting to have been made in pursuance of a decree of Court for the sale of the real estate of L.E. Folk, deceased; that he had a pasture on the land, the railroad running through the pasture on a trestle, and the pasture fence of the plaintiff running under the trestle between the uprights of the trestle; that on or about June 20, 1903, the pasture fence was torn down by defendant for about twenty-five or thirty feet, on each side of the tract.
"Defendant introduced the following evidence, to wit: (1) deed of conveyance, without probate and without certificate of record indorsed thereon, from L.E. Folk, under whom the plaintiff claimed, to the Greenville and Columbia Railroad Company, as follows:
"`The State of South Carolina.
"`Whereas, the Greenville and 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 and Columbia Railroad Company, the right of way of 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 same from time to time, not to exceed 100 feet on each side, *Page 234 with the right to use the earth, stone and timber within the said tract, for the construction, extension or repair of the same road.
"`In witness whereof, the undersigned have subscribed their names and affixed their seal, as of and on the 17th day of August, A.D. 1848. L.E. Folk. (L.S.)
"`Signed, sealed and delivered in the presence of Wm. Spencer Brown.'
"(2) A number of other deeds, establishing a complete chain of title from the Greenville and Columbia Railroad Company to Southern Railway Company; and it was agreed by counsel that said Southern Railway Company is successor to all the rights, privileges and franchises of Greenville and Columbia Railroad Company, and Columbia and Greenville Railroad Company, including the right of way and other rights conveyed by the said deed from L.E. Folk to the Greenville and Columbia Railroad Company, of date August 17, 1848.
"(3) The charter of the Greenville and Columbia Railroad Company, 11 Stat., 348-356.
"The eleventh section of this charter (act of 1845, 11 St., 352), reads as follows:
"`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 centre of said road, has been granted to the said company by the owner or owners thereof, and the said company shall have good right and title to the same,'c., c.
"In reply, the plaintiff, Harman, testified that he never had any knowledge or notice of the deed from L.E. Folk to the Greenville and Columbia Railroad Company concerning the right of way.
"It also appeared in evidence, in reply, that this deed had never been recorded." *Page 235
The jury rendered a verdict in favor of the defendant, and the plaintiff appealed upon exceptions, which will be incorporated in the report of the case.
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 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 one hundred feet on each side of the centre 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 request set out in the third exception, must be considered in connection with that portion where his Honor, the presiding Judge, charged that "if Harman is the owner of the land, he had a right to use it for pasture purposes, or for any purpose he saw fit and proper, subject to the right of the railroad to operate its road through there;" also, that "they have no right to go in there and destroy any property of Mr. Harman, they have no right to remove any property in there, unless strictly for the purpose of repairing and maintaining and operating that roadbed." When the request which was charged, is considered in connection with the other portions of the charge, it will be seen that it is free from the error assigned.
These views dispose of all the exceptions, except the fifth and sixth, which raise the question whether the plaintiff could claim a part of the defendant's right of way, by adverse possession. The doctrine is thus stated in Railway *Page 236 Company v. Beaudrot, 63 S.C. 266, 41 S.E., 299, and affirmed in Hill v. Ry., 67 S.C. 548, 552, 46 S.E., 486, to wit:
"It appears in the `Case' that the defendant had erected within the alleged right of way a substantial fence enclosing what defendant claimed exclusive of any right therein by plaintiff. Such an assertion of right to exclusive occupancy of the land is not compatible with the right of easement belonging to the plaintiff. If such adverse holding should run for the statutory period, the easement would be defeated. We do not say that the mere use or occupation of land, within the right of way acquired by a railroad company, is such adverse use as would give currency to the statute of limitations, unless the use is inconsistent with the easement; but we do say that the enclosing of land within the right of way, under a claim of exclusive right to use and occupation, and a refusal to remove the enclosure after demand therefor, is some evidence of the assertion of a claim, incompatible with plaintiff's alleged easement, which, under the issues raised, ought to have been submitted to the jury."
In the case of Matthews v. Ry., 67 S.C. 499, 508,46 S.E., 335, the Court had under consideration the question whether the public could acquire a prescriptive right to travel over the right of way of a railroad corporation, and decided that it could not. The following language in that case shows that it was not intended to affect the doctrine announced inRailway Co. v. Beaudrot, 63 S.C. 266, 41 S.E., 299, viz: "It should be observed, the conclusion that the public cannot acquire a way on a railroad right of way by prescription, which is founded on the presumption of a deed, does not imply that title to portions of the right of way may not be acquired by adverse possession, which is founded on possession hostile to the true owner. Neither adverse possession nor the doctrine of equitable estoppel, referred to in Crocker v. Collins, 37 S.C. 333, 15 S.E., 951, is involved in this case."
The principle settled in Railway Company v. Beaudrot, *Page 237 supra, cannot be applied in this case, for the reason that there was no testimony, from which it could be inferred that the plaintiff had acquired a title to the defendant's right of way by adverse possession.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.