(concurring):
I concur fully in Judge Cureton’s opinion. I think it appropriate, however, to comment briefly on Part I of Judge Gardner’s dissent.
In Part I of his dissent, Judge Gardner indicates he would uphold the trial court’s grant of summary judgment using the doctrine of “condemnation by substitution.” Under this theory, a municipality may constitutionally condemn specific property and exchange it for other property acquired for public purposes. See Annot., 20 A.L.R. (3d) 862 (1968).
The issue here is not whether the City of Greenwood had the right to condemn property for the relocation of the railroad and exchange it for the right-of-way in question; rather, the issue is whether the City of Greenwood obtained a greater title to the right-of-way than Southern Railway had simply by exchanging other property for it.
I do not think that the doctrine of substitute condemnation can be used by the City of Greenwood to confer upon it a greater interest or title in property than the railroad itself had unless in the exchange the city also pays fair compensation therefor to each person holding a reversionary interest in the property.
I respectfully dissent. I would hold for three separate and distinct reasons that the order of the learned trial judge should be affirmed. While I concur in the analysis of the trial judge, I, for other reasons based upon the record before me, am convinced that the appealed order should be affirmed.
*381I.
Although the issue is novel in South Carolina, it is well settled in courts of other jurisdictions that where, in furtherance of a public purpose, a body politic is authorized to condemn land, it may condemn other property and exchange it for that needed to accomplish such purpose. This doctrine, known as “compensation by substitution,” has been applied in highway re-routing cases by numerous courts. See Herr v. City of St. Petersburg, 114 So. (2d) 171, 174 (1959) and the many cases cited therein for this proposition. The court in Herr noted that the transaction before it amounted to an equal exchange of properties between the City and the railroad, both having the power of eminent domain; the exact same situation this court is faced with and in this connection cited the doctrine of “compensation by substitution.” Id. at 174. The reader is also referred to 20 A.L.R. (3d) 862 and the annotation therein entitled, “Substitute Condemnation: Power To Condemn Property Or Interest Therein To Replace Other Property Taken For Public Use,” Section 3. The doctrines of “compensation by substitution” and “substitute condemnation” have been applied to factual situations similar to the case before us. We, however, do not find a case where either of these doctrines has been applied to the exact same factual situation with which we are faced. In my mind, however, the logic supporting these two doctrines applies to the case before us.
Our Supreme Court in the case of Sadler v. Lyle, 254 S. C. 535, 176 S. E. (2d) 290 (1970) approved the exchange of land and relocation of a railroad track where the public safety and welfare were at stake; there the Supreme Court stated “the fact — that the proposed transaction involves an exchange of property between the city and Southern [Railroad] does not exceed the authority of the city nor violate any public policy. ” [Emphasis mine.]
I would hold that the railroad, under the situation of this case, had the right to convey its easement to the City in lieu of condemnation. Common sense dictates this proposition. If the railroad had a right, as it did, to relocate its line and to condemn property for that purpose,1 and the City had a *382right, as it did, to condemn the railroad’s right-of-way for the purpose of building a highway or road,2 then the City and the railroad company had the right to agree to the exchange of right-of-ways as they did in lieu of condemnation. The state and its political subdivisions have a fundamental fiscal interest in providing for an efficient means of effecting acquisitions of property for public purposes3 and this fundamental interest dictates, in my opinion, the approval by this court of the exchange of right-of-ways between the City and the railroad in order to avoid unnecessary expenses in terms of litigation expenses and otherwise which are incident to condemnation procedures.
The Supreme Court of our state in the case of Matthews v. Seaboard Air Line Ry., 67 S. C. 499, 46 S. E. 335 (1903) rendered an opinion which, in logic, supports the validity of the railroad’s conveyance of the subject property to the City and County of Greenwood. There, after dealing with the right of condemnation of railroad right-of-ways as provided by Section 58-15-1350,4 then Civil Code in 1902, Section 2195, the Supreme Court had this to say:
When conditions arise that would justify the condemnation of a way over a railroad right of way, the railroad company no doubt could, without violating its duty to the public, waive condemnation, and allow the easement over its own right of way____[Emphasis mine.]
67 S. C. at 506, 46 S. E. at 337.
There is no doubt but what conditions arose that would justify the condemnation of a way over the railroad right-of-way. And these conditions are set forth in the appealed order. The track through the City of Greenwood was crisscrossed by highway crossings. This created a dangerous situation which was addressed by an Act of the U. S. Congress entitled, “Demonstration Project for the Elimination *383or Protection of Certain Public Ground-Level Rail-Highway Crossings in or in the Vicinity of Greenwood, South Carolina.” By this Act, 90 percent of the money to accomplish the removal of the tracks and thereby the elimination of the crossings, was obtained.
Subsequently, several agreements were entered into by the City of Greenwood, Greenwood County, the State of South Carolina acting by and through the South Carolina Highway Department and Southern Railway which basically provided for the removal of the tracks from the center of the City of Greenwood to a new route outside of the City. The City obtained and conveyed to the railroad the property for the new route in exchange for all of the railroad’s rights, title and interests in and to its easement or right-of-way in the center of the City, originally acquired pursuant to Act No. 2953 of 1845. The Highway Department, in coordination with the City of Greenwood and Greenwood County, then proceeded to implement a new highway system and traffic program along the old right-of-way through the City of Greenwood, and the old tracks were removed.
Because of the admittedly dangerous situation created by the crisscrossing of the railroad right-of-way by street crossings and the heavy traffic thereon and because the United States Government furnished the money for the City to acquire property outside of the City for a railroad right-of-way to be used in exchange for the railroad’s right-of-way within the City, I would hold that conditions had clearly arisen which justified the conveyance in lieu of the condemnation to the City by the railroad of its right-of-way. And I would so hold. Accordingly, the City has rightfully obtained the right-of-way of the railroad easement by conveyance in lieu of condemnation as provided by Section 57-5-380 as amended; this being true, the plaintiffs in the case before us have no interest in the subject property; and I would so hold.
II.
And I think that my brothers of the majority are in error with respect to Section 24 of Act No. 2953 of 1845. This section provides:
XXIV. That the powers and privileges herein before granted, shall not be so construed as to prevent the *384Legislature from making further grants of Ferries, Bridges, and Turnpike Roads, within any distance of the same whenever the convenience of the community may require such further grants.
The majority concedes that this section clearly grants to the legislature the right to use the right-of-way obtained by the railroad for a public highway; and with this there can be no question. My brothers of the majority then hold that no statute bestows “upon the department [the South Carolina Highway Department] the right to possess or occupy the right-of-way.” I think my brothers of the majority are clearly mistaken about this because our Supreme Court takes a contra view in the case of Riley v. South Carolina State Highway Department, 238 S. C. 19, 118 S. E. (2d) 809 (1961); there our Supreme Court held:
The power of eminent domain is inherent in sovereignty. It is founded on the law of necessity. Paris Mountain Water Co. v. City of Greenville, 110 S. C. 36, 96 S. E. 545 [ (1918) ]. It may be delegated by the State to its agencies. Smith v. City of Greenville, 229 S. C. 252, 92 S. E. (2d) 639 [ (1956) ]. As pointed out in the Paris Mountain Water Company case, this power is more frequently committed by the State to its accredited agencies than it is exercised directly by the State.
The Highway Department was established “as an administrative agency of the State Government,” Section 33-21 of the 1952 code. It derives its power from the Legislature. “It has no inherent power. Whatever power it attempts to exercise must be found in some Act.” Southern Railway Co. v. S. C. State Highway Department, 237 S.C. 75, 115 S. E. (2d) 685, 688 [(1960)]. Among other functions vested in the Highway Department, it is empowered to build and maintain public highways and “acquire such lands and road building materials and rights of way as may be needed for roads and bridges by purchase, gift or condemnation.” Section 33-71. It is further provided in Section 33-122: “The State Highway Department may acquire by gift, purchase, condemnation or otherwise any lands or other real estate that may be necessary, in the judgment of the *385Department, for the construction, maintenance, improvement or safe operation of highways in this State or any section of a State highway * * It is stated in Section 33-127: “The State Highway Department, for the purpose of acquiring property as authorized by Section 33-122, may condemn lands, rights of way and easements of railroad, railway, telegraph or other public service corporations. ” [Emphasis mine.] [See footnoted correlation5 of statutes]
In State Highway Commission v. City of Elizabeth, 102 N. J. Eq. 221, 140 A. 335, 338 [ (1928) ], the Court said in considering the extent of the power of eminent domain given the State Highway Commission, that it must be borne in mind that the Commission “ ‘is an alter ego of the state’ itself” and “not a mere subordinate.” It was held in Elberton Southern Railroad Co. v. State Highway Department, 211 Ga. 838, 89 S. E. (2d) 645, 648 [ (1955) ], that under a general power of condemnation, the Highway Department of Georgia could acquire for public road purposes a part of a railroad right of way and in such a condemnation proceeding “the State, the sovereign itself, is acting by and through its * * * constituted agency, the State Highway Department.” [Emphasis mine.]
In addition to the above, the general assembly by Section 57-5-1640, Code of Laws of South Carolina (1976) provided, “the Department may — enter into lawful and appropriate agreements and contracts with railroad companies for— property rearrangement____”
Taking all of the above together, together with the words of Section 24 of Act No. 2953 of 1845 it seems clear to me that the legislature has delegated to the Highway Depart*386ment the right to grant roads over the subject property because the convenience of the community of the City of Greenwood and the County of Greenwood requires such. In my mind no other meaning can be ascribed to Section 24 and the above statutes and Supreme Court authority when read together. And I would so hold.
III.
I would affirm the appealed order on a further ground not expressed by the trial judge but appearing of record. Section 7 Act No. 43 of 1868 was later codified by Section 58-15-1310, Code of Laws of South Carolina (1976), which was repealed by Act No. 173 of the 1987 South Carolina Statutes at Large; this Act originally passed in 1868 provided, in effect, that when land was condemned by a railroad, it only obtained an easement as long as the property was used for a railroad and the title to the land remained in the owners. I believe that the repeal of this Act by Act No. 173 of the 1987 South Carolina Statutes at Large removes an erroneous concept of the nature of the title obtained by the railroad by Section 11 of Act No. 2953 of 1845.
The South Carolina Supreme Court cases on the law of this particular issue are conflicting. Where conflicting decisions appear to have been made by inadvertence or otherwise, and the position of the court is thereby rendered uncertain, the rule of stare decisis does not necessarily apply, and it is the duty of this court to follow the decision which it conceives is based upon the sounder reasoning, although, generally, the last expression of the court is controlling against prior opinions. Coleman v. Page’s Estate, 202 S. C. 486, 25 S. E. (2d) 559 (1943). Such is the state of the law in the case before us.
In the case of Lewis v. Wilmington & M.R. Co., 11 Rich. 91 (1857) the court interpreted language similar to that of Section 11 of Act No. 2953 of 1845 as meaning that the owner would be forever barred from recovering the land or compensation if he failed to act within the prescribed period. After the passage in 1868 of Section 7 of Act No. 43, later Section 58-15-1310, now repealed, it appears that the Supreme Court felt compelled to interpret Section 11 of Act No. 2953 of 1845 as vesting only an easement in the railroad *387as long as it was used as a railroad. And so later cases6 expressed a view contra to the view expressed in Lewis, which was decided before the 1868 Act limiting the title obtained by a railroad in condemnation proceedings to an easement. Now that Section 58-15-1310 has been repealed, it would seem to me that the courts should take a fresh look at the meaning of Section 11 of Act No. 2953 of 1845.
With the above in mind, I address the meaning of the statute. Act No. 2953 of 1845 provided by Section 9 thereof that the railroad could purchase fee simple title to the lands it needed in those cases where the owners of the land and the railroad agreed; by Section 10 thereof, the Act provided that when the parties could not agree, the railroad could acquire fee simple title to the property by way of condemnation.
Section 11 of the Act No. 2953 of 1845 provided:
XI. 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, (and shall have, hold and enjoy the same) unto them and their successors, so long as the same may be used only for the purposes of the said road and no longer, unless the person or persons to whom any right or title to such lands, tenements, or heriditaments descend or come, shall prosecute the same within two years next after the construction of such part or portion of the said road as may be constructed upon the lands of the person or persons so having or acquiring such right to the title as aforesaid, and if any person or persons to whom any right or title to such lands, tenements or heriditaments belong or shall hereafter descend or come do not pros*388ecute the same within two years next after the construction of the part of the said road upon the lands of the person or persons so having or acquiring such right or title as aforesaid, then he or they, and all claiming under him or them, shall be forever barred to recover the same: Provided, That nothing herein contained shall affect the right of feme coverts, infants or persons beyond seas, until two years after the removal of their respective disabilities.
I interpret the above Section as providing that where the owners refuse to sell and where the names of the owners were unknown to the railroad and therefore condemnation was not practical, the railroads could enter upon the property and commence construction on the land without being charged with trespass and that if the railroad so entered upon the property it would “be presumed that the subject land had been granted to the railroad by the owner or owners thereof so long as the railroad used it for purposes of the road.” The Act then provided after the word “unless” that the owners had two years within which to seek compensation for the land so taken, in which event the railroad would have obtained fee simple title. And importantly, if the owners failed to seek compensation within two years, then “the person or persons so having — such right of title and all claiming under him or them shall be forever barred to recover the same.” No other construction makes sense because the legislature said in no uncertain words that if the owners failed to seek compensation within two years, they would be forever barred from recovering title to the land. The land then belonged to the railroad unless it belonged to the state under Section 12 of the Act.
Section 12 of the Act provides that any lands which have not been theretofore granted by the state to any person would be vested in the railroad as long as it was used by the railroad. This section reminds us that in the 1845 title much of the land of this state was still vested in the state as successor to the seven proprietors.
In summary, the legislature in passing the 1845 Act envisioned four separate situations, which were:
*3891. Those situations in which the railroad was able to buy the property from individuals who owned it, which situations were covered by Section 10 of the Act.
2. Those situations in which the land was owned by individuals or legal entities which refused to sell to the railroad, in which cáse the legislature delegated to the railroad the right of condemnation and thereby the acquisition of fee simple title to the subject land; these situations are covered by Section 10 of the Act.
3. Those situations in which the owner of the land was either unknown or the land belonged to the state; these situations were covered by Section 11 of the Act.
4. Those situations in which the land was still owned by the state; these situations were covered by Section 12 of the Act.
I would hold that the legislature envisioned by Section 11 of the Act that when no owner of the land could be found, a presumption of grant from the state would be made to the railroad in order to avoid trespass actions but with the provision that if the owner did not apply for compensation by an inverse condemnation action, within two years, then the owners were forever barred from recovering title and consequently there would be no reversionary interest which could be triggered by an alleged abandonment of the railroad right-of-way.
I would for the above reasons hold that the ruling of Lewis v. Wilmington & M.R. Co., supra, is controlling in this case.
CONCLUSION
I would hold for the reasons above set forth that (1) the subject land was acquired from the railroad in lieu of condemnation and therefore there is no reversion which might be triggered, (2) that Section 24 of the Act authorized the Highway Department, the City and County of Greenwood to use the land as a highway for motor vehicular traffic and (3) that the railroad owned a fee simple title to the subject property except that portion thereof which was titled in the State of South Carolina in 1845. For these reasons, I respectfully dissent to the majority opinion.
See Sections 58-17-1190 and 58-17-1200, Code of Laws of South Carolina (1976) as amended in 1987.
See Sections 57-5-370 and 57-5-380, Code of Laws of South Carolina (1976) as amended in 1987, and note the 1987 amendment to Section 57-5-380 provides, “the condemnation does not impair the ability of the railroad — to operate.”
See Preamble to Act No. 173, Volume 2, Acts and Joint Resolutions, South Carolina (1987).
This Section must be read in conjunction with Section 57-5-380 as amended in 1987. The concurring opinion overlooks this principle.
Section 33-22 of the 1952 Code is presently Section 57-3-10 and 57-3-20, Code of Laws of South Carolina (1976) as amended; Section 33-71 of the 1952 Code is Section 57-3-610(2), Code of Laws of South Carolina (1976) as amended; Section 33-122 of the 1952 Code is presently Section 57-5-320, Code of Laws of South Carolina (1976) as amended; Section 33-127 of the 1952 Code is presently Section 57-5-380, Code of Laws of South Carolina (1976) as amended.
E.g., Ragsdale v. Southern Ry., 60 S. C. 381, 38 S. E. 609 (1901) and Southern Ry. v. Beaudrot, 63 S. C. 266, 41 S. E. 299 (1902).