The opinion of the court was delivered by
Mr. Justice McIyer.This action was brought by the Plaintiffs to recover possession of two strips of land in the possession of the defendant, constituting a part of its road-bed, as ivell as damages for withholding the same. It seems that neither the defendant, nor the company whose rights it had acquired by legislation and arrangement, had ever taken the steps prescribed by statute for the purpose of acquiring the right of way over the tract of land conceded to be the property of the plaintiffs, but that it, as well as the company with which it had been consolidated, had taken possession and constructed its railroad under an alleged consent of the owners, still, however, acknowledging its liability to pay the value of the land actually taken, as well as any special damages occasioned thereby. The jury found a verdict for the defendant, and the plaintiffs appeal on the ground of error on the part of the Circuit judge in his rulings as to the admissibility of certain testimony, and in his charge to the jury> The exceptions are very numerous, but as many of them were taken under a misapprehension of the judge’s charge, as appears by his report settling the case for appeal, it will not be necessary to set out the exceptions in detail.
As we understand the case, two general questions arise out of this appeal: First, whether the Circuit judge erred in his rulings as to the admissibility of evidence. Second, whether he erred in instructing the jury that the permission or consent of the executors of James Tompkins, or either of them, was sufficient to -warrant the defendant in going upon the land of the plaintiffs and constructing its railroad over said land, without first pursuing the mode prescribed by statute for having said land condemned.
While reference must be had to the record (which is too volu- , *428minous to warrant us in undertaking to make even an abstract of it) for the origin and history of this case, a brief statement of such facts as may be necessary to a proper understanding of the questions raised will, perhaps, be desirable. It is conceded that James Tompkins died seized and possessed of the tract of land over which the railroad of the defendant has been constructed, and that the plaintiffs are his heirs at law; that by his will he devised the said tract of land to his widow, Huldah Tompkins, who died intestate in 1868, leaving as her heirs at law the plaintiffs in this case, together with her grandson, who died in 1872, whose interest the plaintiffs have acquired; and that the plaintiffs, S. S. Tompkins and J. W. Tompkins, are the duly qualified executors of said will.
By the first clause of his will the testator directed that his debts and funeral expenses “be paid out of the debts due me or moneys on hand at my death, and if insufficient, then that my executors, hereinafter named, sell enough of my estate, not herein specially disposed of, either publicly or privately, and upon such terms as they may elect, to pay and satisfy all just claims against me.” By the residuary clause of the will all the rest and residue of the estate is devised and bequeathed to certain persons therein named, and for the purpose of effecting division amongst the devisees and legatees so named, the executors are authorized “to sell and convey any part or all of my estate, either privately or at public or private auction, that is at auction at which only the beneficiaries under this clause are permitted to buy.”
The plaintiffs contend that the land in question having been specifically devised to the widow, the- same descended to them as her heirs at law upon her death in 1868, and that, therefore, the executors of James Tompkins had nothing whatever to do with the land, and had no control over it. It appears, however, from the record of a former suit between these same parties, introduced in evidence in this case, that these plaintiffs there distinctly alleged that the widow “declined to take under the said will, but claimed dower in all of the real estate of the testator.” This being so (and the fact that it is so cannot now be denied by the plaintiffs), the devise to the widow never took effect, and the land fell into *429the residuum of the testator’s estate, and the plaintiffs can only claim it under the residuary clause of the will.
The question as to the competency of certain evidence resolves itself into two branches. After testimony had been adduced for the purpose of showing that the defendant company had entered upon the land in question by the permission or acquiescence of the executors, the following question was propounded to one of the witnesses : “Was there or not any act of S. S. Tompkins indicating a dissent?” which, upon objection, was ruled competent. We do not see any error in such ruling. The point of inquiry was whether the company had entered by permission of the executors, which permission may, as we shall presently see, be inferred from facts and circumstances; and after evidence had been offered of such facts and circumstances, we not only see no error in the form in which the question was put, but it would seem to be the most natural termination of the inquiry.
The next inquiry is as to the correctness of the ruling by which the witness, S. S. Tompkins, was prevented from testifying as to the contents of certain letters alleged to have been written by the witness to Aiken and Verdery, two of the officers of the company. Nothing would seem to be clearer than that the letters themselves furnished the best evidence of their contents; and until the proper foundation was laid, it was clearly incompetent to introduce secondary evidence. If, as it seems to be contended, the plaintiffs were satisfied that the letters were in court, in the possession of the defendant or its officers, notice to produce them might have been given, even at the trial (Reynolds v. Quattlebum, 2 Rich., 140); and if the plaintiffs failed to do so, they have no just cause of complaint that the secondary evidence offered by them was rejected. Nor does the fact that Verdery subsequently testified as to these letters, alter the case. His testimony was given without objection, and the fact that one party has allowed the other to adduce incompetent testimony without objection, will not authorize him in turn to introduce other incompetent testimony when it is objected to.
The next question is as to the power of the executors, or either of them, to give the company permission to enter upon the land and construct its railroad; for the fact that such permission was *430given must be regarded as settled by the verdict of the jury. This question has been argued by the appellants as if the defendant’s position was that such permission operated as a transfer of the right of way; but we do not so understand the position of the defendant. On the contrary, by its pleadings in this case, as well as in the former suit between these same parties, the defendant expressly concedes its liability to pay for the right of way, and avers its willingness to do so, whenever the value of the land which-it has taken, as well as the special damages, if any, shall be ascertained. The defendant only contends that the permission of the executors operated to relieve them from the charge of trespassing, in entering upon the land and constructing their railroad; and that, as the plaintiffs in this case, in order to enable them to recover, must not only establish their title to the land in question, but must go further and show that the person whom they are seeking to oust is wrongfully in possession, they cannot recover if it appears that such person is rightfully in possession.
Under the construction given to section 83 of chapter LXIIL, of the General Statutes of 1872 (which is the law applicable in this case), by the case of Verdier v. Port Royal Railroad Company, 15 S. C., 476, where the landowner has permitted a railroad company to enter upon his land and construct its road, he cannot maintain an action to dispossess said company, even though the steps presci’ibed by the statute for the purpose of condemning so much of said land as may be necessary for the purposes of the company have not been taken. The statute, in compliance with the constitutional provision declaring that private property shall not be taken for the use of a corporation without the consent of the owner, or a just compensation .being made therefor, provides that a corporation shall, before entering upon any land for the purpose of constructing its road, give notice to the owner, so that if he objects to such entry, the corporation shall first pursue the course prescribed by the statute to have a condemnation of the land; but if the owner does not object, but on the contrary, permits the company to enter, which permission, as is held by the case above cited, may be inferred from all the facts and circumstances, then such entry does not become unlawful, though it leaves the company still liable to pay for the value *431of the land taken, together with any special damage that the landowner may sustain by reason of such taking. The only effect of such permission to enter is not to confer any right of way, but simply to relieve the company so entering from the character of a trespasser.
The practical inquiry, therefore, in this case is, whether the defendant had such permission to enter upon the land of the plaintiffs and proceed in the construction of its road; for if it did, then the entry was lawful and the company was rightfully in possession, and this action cannot be maintained. Inasmuch as the verdict of the jury establishes the fact that the company did have the permission of the executors of James Tompkins, or one of them, to enter upon the land for the purpose of constructing its railroad, the inquiry is narrowed down to the question whether the executors, or either of them, had the power to grant such permission. The statute, in dealing with this subject, uses the term “owner” of the land, and it is earnestly contended that the executors were not the owners of the land in question; but that, at most, they simply had a power to sell, for certain purposes, while the legal title remained in the plaintiffs, who were and still are the owners of the land.
It is quite obvious that the statute does not use the term “owner” in the sense of the holder of the legal title, but rather in the sense of one who has the control of the land. If a minor, or other person under disability, holds the legal title, the statute prescribes that the notices a.nd other papers necessary in the proceedings for the condemnation of the land, shall be served, not upon such minor or other person under disability, but upon his guardian, trustee, or committee — that is, upon the person who exercises control over the land, even though he does not hold the legal title, and is not, in the strict sense of the term, the owner of the land. In this case the executors must necessarily have had the control of this land, for they were not only authorized to sell it for division, but, after it had fallen into the residuum, by the widow’s renouncing her rights under the will and electing to claim dower in the whole of the real estate, they had also the power to sell the whole or any part of-it for the purpose of paying the debts of the testator. To exercise these powers, the exe*432cutors must, of necessity, have retained the control of the land, and having such control, we see no reason why they, or either of them, could not grant permission to the defendant company to enter upon the land for the purpose of constructing its railroad, without in any manner interfering with the right of such of the devisees as become entitled, on the division of the land appropriated by the company, to claim compensation therefor.
In the argument' here, the constitutionality of the act providing the mode of obtaining compensation for lands appropriated by a corporation, has been assailed. But inasmuch as no such question was raised in the Circuit Court, or by any of the exceptions, it is not properly before us for consideration. We may say, however, that even if it should be assumed that the act was unconstitutional (though upon that point we express no opinion), we do not see how it could help the case of the appellants. For without this act, if the company has entered upon the land by proper authority, then it is rightfully in possession and this action cannot be maintained, but the plaintiffs would be remitted to their claim for damages merely.
The judgment of this court is that the judgment of the Circuit Court be affirmed..