The opinion of the Court was delivered by
Willard, A. J.The objection that there are no exceptions to the charge of the Circuit Judge is not well taken. It appears that the defendants requested the Judge to charge certain propositions of law; that the Judge not only declined to make such charge, but forebore from making any comment upon the propositions advanced by the defendants, on the ground, as would seem from his charge, that such question could properly come up in some other way for review. It appears clearly that the propositions relied upon by the'1 defendants, as stated in their re'quest to charge, were brought to the *430attention of the Court, and that in making the charge the Judge understood and intended that the defendants would have the right to be heard as to such matters upon appeal. This is all that is required to constitute an exception, although in point of form a request to note an exception, after the Judge had determined not to charge as requested by the defendants, was the strictly regular course. It does not follow in every case where a party submits propositions with a request to charge, and when the Circuit Judge charges in certain particulars at variance with such request, that the party making such request is to be deemed as excepting to such charge to the extent of such variance.
It should appear by the record that the Court was apprised that the party intended to rely on the propositions advanced by way of exception. In the present case that fact appears by the language of the charge itself, and there is a substantial compliance with the rule in question.
But the exception must be limited to the matters embraced in the request to charge. Only those exceptions that were made before the jury retired to their room can be heard by us. — Fox vs. Railroad Company, 4 S. C., 543.
The memorandum contained in the brief, as follows: “ Whereupon defendants’ counsel gave notice of exceptions,” must be regarded as referring to some act performed after the rendition of the verdict. “Whereupon” must be regarded as relating to something done subsequent, in point of time, to the event last stated, which was the finding of the jury.
Under these circumstances the exception appears to that part of the charge-that directed the jury to find the amount claimed by the plaintiff, in the event that they found as matters of fact that the defendants had voluntarily assumed the benefits or submitted to the obligations of the contract on which the plaintiff sued. It is not a question before us, then, what the proper remedy upon the contract in suit was, but whether there was anything in the law of the case that rendered the charge improper in omitting to lay before the jury the propositions embraced in the request to charge. All that appears to have been actually charged is as follows : “I will' say in case they (defendants) endorsed or accepted this contract, or acted under it, they are liable for the amount claimed by the plaintiffs ; and let the case go upon that charge. And if they did not sanction it nor act upon it, then I don’t think they are liable.”
*431In order to understand the bearing of the defendants’ proposition, it is necessary to look to the nature and effect of the contract on which the plaintiffs brought their action. ’
Prior to the date of that contract, the plaintiffs had constructed, owned and operated a line of railroad called the Camden branch, that included nine miles, extending between ívingville and a point near Manchester, the terminus of the road of the Wilmington and Manchester Railroad Company. The last named company, an incorporation distinct from the present defendants, desiring to obtain the use of that nine miles for the purpose of making Kingville a terminus of their road, made a contract with the plaintiffs for the purchase of such right. The contract was in writing under the seals of the respective corporations, and bore date August 22, 1853. The object of the contract is stated as follows:
“That the South Carolina Railroad Company agrees to admit the Wilmington and Manchester Railroad Company to the joint, permanent and mutual use of so much of the Camden branch of their road as extends, &e., * * * upon the terms, conditions and covenants expressed of and concerning the same.”
These covenants and conditions embraced the considerations, past and future, upon which the respective parties covenanted together. The Wilmington and Manchester Railroad Company, “in consideration of the joint and mutual use of so much of the road of the South Carolina Railroad Company granted to them as aforesaid,” agree to pay the plaintiffs “ one-half of the estimated cost of the construction of the said road,” ascertained by the contract at the sum of $14,000 per mile. All expenses for maintaining the road between the points indicated to be equally borne by the parties. Each party to use the road for the conveyance of passengers and freight under regulations for mutual convenience and safety. Each party to pay the other a certain proportion or amount of its receipts for the conveyance of passengers and freight earned upon the line jointly occupied,
The contract certainly transfered to the Wilmington and Manchester Railroad Company a servitude in the land in the nature of a right of way jointly with the plaintiffs, if it did not become the means of transferring to that company a recognizable interest in the land itself. It will not be necessary to fix the full extent of interest that passed thereby to the Wilmington and Manchester Railroad Company, and it is premature to establish the full right of *432the parties under the contract, these rights not having been submitted to us or discussed by counsel, in view of the very limited influence of the contract on the questions brought before us by the defendants’ exceptions, As it regards the superstructure, including bridges and the iron, the position of the parties is the same as if they had united with a common fund in their original construction under a contract for joint uses.
The present defendants were incorporated March 1, 1870. — 14 Statutes, 389. The Act recites the fact that the parties incorporated had become purchasers, under various mortgages executed by the Wilmington and Manchester Railroad Company, “of all and singular the estate, property and effects, including the entire line of railroad, the engines, rolling stock, machinery, machine shops, depots and other tangible property and effects hereafter belonging to said company, connected with or related to said railroad, or the construction, maintenance or use thereof, between its Eastern terminus at Wilmington and its Westerly terminus at Kingville, South Carolina.” The Act confers corporate powers upon the purchasers of such property and their associates.
The mortgages are not set out in the brief. A memorandum of the terms of the Referee’s advertisement and of a portion of the deed of conveyance is appended to the brief and argument.
It is in proof that the only access that the Wilmington and Manchester Railroad Company had to Kingville was by means of the right of way secured to that company by the contract in suit, and that the defendants under their charter used and occupied their rightof way after they had constructed aline to Columbia, independent of that portion of their road that connected with the Camden branch.
The fact of claiming under and occupying the right of way in question under the terms and recitals of their charter must be regarded as at least prima facie proof that the defendants became the purchasers from the Wilmington and Manchester Railroad Company of the rights, whatever they may be, that the last named company acquired under the contract in suit.
The first proposition, namely, that the contract imposed no obligation on the defendants as purchasers to perform the same, could not properly have been charged as stated, for it would have led the minds of the jury to an erroneous idea of the law. While it may'be true that the contract did not directly bind any other *433persons than the contracting parties, yet, indirectly, it did, in virtue of certain transactions based upon it, giving rise to relations referred by operation of law to the contract itself for the purpose of making them certain.
The second proposition is based on the idea that the defendants do not claim the use of that part of the road in dispute. This fact is of no legal importance. They are, as matter of law, invested with the right conferred by the contract, and the plaintiff’s title in the land and railroad is limited, encumbered by the rights held by the defendants. The rights granted by the contract are not alleged to have been removed or lost by non-user with lapse of time, nor can a disclaimer by plea affect the right of recovery for transactions occurring before it is pleaded.
The third proposition claims that the defendants, even if bound by the contract, have availed themselves of the right to renounce that which the contract confers and thus escape its obligations. There is no proof that the rights acquired by the defendants have been restored to the plaintiff or parted with in any manner; for all that appears, either the defendants or their creditors might make the right of way granted by the contract available if they sought to do so.
The fourth proposition alleges that a temporary arrangement made by the parties by parol and terminable at the pleasure of parties, by which, for the time being, the requirements of the contract as to certain particulars were not to apply, had the effect to destroy the contract. The answer to this is the same as to the last considered. While defendants are in a position to assert at any moment the right in and upon the lands in question conferred by the contract, the term that entered into the consideration upon which the right was granted must be deemed in force.
The fifth proposition alleges that certain of the mortgages under which the defendants claim title were prior in date to the contract, and the mortgagees and those desiring their title under them stand upon a prior right to that of the contract. This proposition is not true, when, under the mortgage, the mortgagees have appropriated and disposed of the rights conferred by the contract. Having asserted their mortgage against rights called into existence subsequent to their mortgages, they must take such rights cum onere.
*434The sixth proposition is not applicable to the case in hand. The verdict included nothing, as far as appears, subject to the objection made in this proposition.
The additional objection stated in the notice of appeal was not taken in time; but under the view we take of the case it is unimportant, as we do not rest the right of the party upon any parol contract.
The motion must be refused.
Moses, C. J., and Wright, A. J., concurred.