September 24, 1931. The opinion of the Court was delivered by For a statement of this case, we adopt the agreed statement of counsel contained in the transcript of record, as follows:
"This is an action brought by the plaintiff herein on January 12, 1928, for the purpose of enjoining and restraining the defendant from occupying and using any part of a strip of land one hundred (100) feet wide immediately adjacent to the property of the defendant and to the tracks of the plaintiff, situate and being at mile post W. 70 1/2, East Spartanburg, County of Spartanburg, State of South Carolina, and for the further purpose of requiring the defendant to move a building and fence from the right-of-way of plaintiff, erected within one hundred (100) feet of the center line of its main track leading from Spartanburg to Columbia.
"The defendant answered denying the railroad's right-of-way to one hundred (100) feet on the west side of its track at the point hereinabove set forth and claimed absolute title himself. He also set up several defenses in his answer, the principal ones being that plaintiff had not complied with the terms of its charter and that it had abandoned the original line of railroad as the connecting link between Spartanburg and Columbia, and had voluntarily elected to erect and operate another main line of railroad for the purpose of giving ingress and egress into and through the City of Spartanburg.
"At the close of the testimony, motions for directed verdicts were made both by the plaintiff and the defendant. The presiding Judge overruled the motion for a directed verdict by the plaintiff. He, however, granted the motion for a directed verdict by the defendant — holding that the railroad, since it had voluntarily elected to vary the operations of its trains between the termini by cutting the East Main Street crossing and erecting a new belt line from East Spartanburg through the city to the Air Line Railway for the operation of its through freight and passenger trains thereover, abandoned that portion between the cut-off and *Page 330 the northern terminus and relinquished its charter rights thereto for ordinary railroad purposes. However, due to the fact that the defendant admitted that when he bought the property, he bought it by and from a plat of the Lockman estate showing a right-of-way in the said plaintiff of fifty (50) feet, the presiding Judge modified the above ruling to the extent of allowing the railroad a right-of-way fifty (50) feet from the center of its main line on the west adjacent to the property of the defendant, and required that the defendant move his warehouse and fence back to this fifty (50) foot line."
Following the ruling of his Honor, Judge M.M. Mann, before whom the case was tried, as to the direction of a verdict, his Honor issued the following order:
"ORDER "`This is an action brought by the plaintiff herein for the purpose of enjoining and restraining the defendant from occupying and using any part of a strip of land one hundred (100) feet wide immediately adjacent to the property of this defendant and to the tracks of the plaintiff herein, situate and being at Mile Post 70 1/2 at East Spartanburg, County of Spartanburg, State of South Carolina, and for the further purpose of requiring the defendant to move a building and fence from the right-of-way of the plaintiff, if it should be determined that the plaintiff was entitled to a hundred-foot right-of-way as claimed.
"The defendant answered denying the railroad's right to a hundred-foot right-of-way on the west side of its tracks at the point hereinabove set forth, and claimed absolute title in himself. He also set up several defenses in his answer, the principal ones being that plaintiff had not complied with the terms of its charter and that it had abandoned the original main line of railway as the connecting link between Spartanburg and Columbia and had voluntarily elected to erect and operate another main line of railway for the *Page 331 purpose of giving ingress and egress into and from the City of Spartanburg. The contention of the defendant being that said action on the part of the railway breached the terms and provisions of the charter granted to the Spartanburg and Union Railway Company in 1847, and that the plaintiff was estopped to claim any more of said right-of-way therein provided for than was actually occupied by the tracks of the plaintiff and in use by them at the time of the abandonment.
"At the close of the testimony a motion for a directed verdict was made by both the plaintiff and the defendant, and after careful consideration of the testimony and argument of counsel. I was convinced that there was but one reasonable conclusion to be deducted therefrom, and that was that the contention of the defendant was sound and that he was entitled to the relief prayed for in his answer. I, therefore, directed a verdict for the defendant, holding that the railroad, since it had voluntarily elected to change the main line of its railway from the location originally used to a new one, constituted an abandonment of its rights and privileges under its original charter, and under the terms of the same said railroad was no longer entitled to any more of the right-of-way therein granted than was actually occupied by its tracks at the present time. However, due to the fact that the defendant admitted that when he bought the property, he bought it from a plat showing a right-of-way in the said plaintiff of fifty (50) feet, I modified the above ruling to the extent of allowing the railroad sufficient additional property to extend the same beyond the land actually occupied by the tracks to a distance of fifty feet from the center of the original main line.
"Now, therefore, on motion of Perrin Tinsley, attorneys for the defendant herein, it is ordered that the plaintiff and its successors in title, together with all its agents, servants or representatives, be and are hereby permanently enjoined from using any portion of the property of the *Page 332 defendant herein adjacent to the said railroad as a right-of-way beyond a line parallel with the original main line of the Spartanburg and Union Railway, running between Spartanburg and Union, as constructed under its charter of 1847, at a distance of fifty feet from said original main line, as shown on a plat of the A.C. Lockman estate property, near East Spartanburg, made by W.N. Willis, Engineer, March 20, 1913, and recorded in the office of R.M.C. for Spartanburg County, in Plat Book No. 3, page 192.
"The plaintiff herein is further ordered to remove from the property of the defendant, as herein fixed, within sixty (60) days from the date of this order, any property which they now have located thereon, and is hereby permanently enjoined from in any way using for any of its purposes any of the property of this defendant lying on the westerly side of the tracks of said company at a distance of more than fifty feet therefrom.
"It is further ordered and decreed that the defendant be, and he hereby is, permanently enjoined from using any of the property in the alleged right-of-way of the Southern Railway Company east of the line hereinabove fixed by the Lockman plat, and he is hereby directed and ordered to remove from said right-of-way of the plaintiff, within sixty (60) days from the date of this order, the fence constructed thereon and so much of the building described in the complaint as extends beyond the line herein fixed as the boundary line between the plaintiff and the defendant. Provided, however, that it will be a sufficient compliance with this order for the defendant to remove so much of said building as is on the right-of-way of the Southern Railway as determined herein, at such time as he may be required to do so by the plaintiff, even should this time extend beyond the sixty-day period herein fixed.
"It is further ordered and decreed that an appeal from this order to the Supreme Court of this State shall automatically stay the enforcement of the provisions of this *Page 333 order until the final adjudication thereof by the Supreme Court, or the appeal has been dismissed."
From the rulings and order of the trial Judge and Judgment thereon, the plaintiff has appealed to this Court. The defendant also excepted to certain parts of said order, but upon the hearing before this Court abandoned his exceptions and asked that the judgment in the lower Court be sustained as a whole.
In the said order, his Honor, Judge Mann, gives a clear statement of the issues involved and a full discussion of the same. For that reason we consider it unnecessary for us to enter into a discussion of the several exceptions, but deem it sufficient to state that after a careful examination of the entire record we think Judge Mann made a proper ruling on the motions before him and issued a proper order in the case. As to the position of appellant, that under the testimony issues of fact were raised which came within the province of the jury, even granting this, in our opinion appellant is not in position to maintain that contention. The record discloses that after counsel for the defendant had made a motion for direction of a verdict, counsel for the plaintiff (appellant before this Court) made this statement before the trial Judge: "I agree with counsel it is within the province of the Court to direct a verdict one way or the other in this case, and under the evidence the Court should do so, and I move therefore for a directed verdict on the grounds," and thereupon stated plaintiff's grounds for a directed verdict. Thereupon, the trial Judge considered and passed upon the issues of fact as well as law, and rendered a decision adverse to appellant's contention. In our opinion, the trial Judge was justified in concluding that counsel conceded that there was no question to be submitted to the jury, and the question cannot now be raised in this Court. Furthermore, from our examination of the testimony in the case, we are of the opinion that the case was properly not submitted to the jury; that there was but one reasonable *Page 334 inference to be drawn from the testimony; and that his Honor correctly decided the case in favor of the defendant.
The exceptions are overruled, and the judgment of the Circuit Court affirmed.
MR. JUSTICE STABLER concurs.
MR. JUSTICE BLEASE and MR. ACTING ASSOCIATE JUSTICE GRAYDON concur in result.
MR. JUSTICE COTHRAN dissents.