November 4, 1921. The opinion of the Court was delivered by This is an action for damages to the plaintiff's lot, in the city of Sumter, S.C. The allegations of the complaint, *Page 542 material to the questions under consideration, are as follows:
"That the plaintiff is the owner in fee, and at the times hereinafter mentioned was in peaceable possession of the following described lot of land in said city of Sumter, to wit: * * *
"That on or about the 20th day of March, 1917, the defendant caused a gang of laborers to approach plaintiff's property for the purpose of laying a railroad track thereon. That when said laborers commenced to go upon plaintiff's land, he warned them, together with the foreman or person in charge of them, not to trespass upon his property, and ordered them to desist from attempting to lay said track thereupon, and positively refused to allow them to encroach upon his property, and in order to make his property line more apparent, and to prevent any mistake as to its location, and to further signify his refusal to permit the defendants to lay their track thereon, the plaintiff erected a wooden fence along the line of his property.
"That on the following day the plaintiff's property and said fence was left alone, until late in the afternoon, when the said construction gang of said defendant, under the orders and directions of the defendant, as plaintiff is informed, approached said fence, dug up his posts, cut the land away from underneath the same, and ran their track upon plaintiff's land, and later tore down said fence altogether, all against the will, and without the consent, and over the objection of the plaintiff."
The answer of the defendant was a general denial.
The jury rendered a verdict in favor of the plaintiff for the sum of $2,000, and the defendant appealed upon exceptions which will be reported.
At the close of the plaintiff's testimony the defendant made a motion for a nonsuit on the ground that the plaintiff had failed to prove title in himself. As *Page 543 the plaintiff alleged that he was in peaceful possession of the lot, and there was testimony to that effect, the refusal to grant the nonsuit was free from error. Investment Co.v. Lumber Co., 86 S.C. 358; 68 S.E., 637; 30 L.R.A. (N.S.) 243.
Furthermore, the plaintiff's attorneys stated in open Court that they were not asking that the land be surrendered to the plaintiff, but merely for damages for the trespass. His Honor, the presiding Judge, also stated:
"They do not ask for the recovery of the land, but they ask for damages for your having broken into their possession, and invaded their quiet possession. That does not bring up the question of title. I think this is clearly a case of quare clausum fregit, and in actions of that kind the title does not enter."
Therefore the exceptions raising this question cannot be sustained.
We proceed to the consideration of those exceptions assigning error on the part of the Circuit Judge in refusing to allow the defendant to introduce in evidence the charter of the Wilmington Manchester Railway Company, its predecessor.
In ruling upon this question his Honor, the presiding Judge, used the following language:
"Now for the defendant to say,`I went in on that property and I was justified by showing I had a right to do it under our statutes, under any charter, or under a grant from somebody else,' that is an affirmative defense that he must set up in his answer. I can't see it any other way, and consequently I am obliged to rule this testimony out."
In Hill v. Bailey, 8 Mo. App. 85, the Court, in holding that a general denial of the plaintiff's title will admit evidence of adverse possession, said:
"The plaintiffs insist that the finding and judgment were erroneous, because the answer did not set up the statute in *Page 544 defense. When the statute is relied on as a bar to the remedy merely, it must be specially pleaded. The rule is ancient, and needs no citation of authorities to sustain it. But where the title to real estate is in question, the operation of the statute is found to have a higher range. It is capable of conferring an absolute title. Hence it has long been held that a general denial of the plaintiff's title will suffice for the admission of evidence of adverse possession for the statutory period; because this will not merely bar the remedy, but may establish a title in the defendant which will conclusively negative any ownership in the plaintiff. In other words, it sustains and verifies the denial of the plaintiff's title. Nelson v. Broadhack, 44 Mo., 596. The rule is not confined to actions of ejectment. The reasoning upon which it is founded sanctions its application to any case wherein the title to land is in dispute. There was, therefore, no error in admitting this defense under the general denial."
The foregoing is quoted with approval in Sutton v. Clark,59 S.C. 440; 38 S.E., 150; 82 Am. St. Rep., 848.
If the defendant had pleaded a bar to the plaintiff's action, testimony offered by him would have been admissible to prove it, but not under a general denial. It, however, was offered for the purpose of establishing the right of the defendant to the possession of the land for corporate purposes, and to disprove the allegations and testimony of the plaintiff, to the effect that he was in peaceful and rightful possession of the lot in question.
The exceptions raising this question are sustained. All other exceptions were dependent upon the questions which we have considered.
Reversed and remanded for new trial. *Page 545