Colclough v. Briggs

The opinion of the Court was delivered by Mr. Chiee Justice Gary. This is an action for the recovery of damages alleged to have been sustained by the plaintiff, on account of a breach of the warranty contained in a deed described in the complaint herein, which will be found in the report of this case on a former appeal in 95 S. C. 4, 78 S. E. 530. The facts are thus stated in the decree of his Honor, the presiding Judge: “This action was heard by me in open Court on the pleadings, the record in the cause, and the testimony offered in evidence, a jury being waived by all parties to the action. It appears that a demurrer to the complaint was first interposed by the defendant, on the ground that said complaint failed to state a cause of action, but said demurrer was overruled in a recent decision of the Supreme Court of the State (95 S. C. 4, 78 S. E. 530). It appeárs that in the year 1904, E. M. Briggs and R. R. Briggs, trustee, conveyed to the plaintiff herein a lot of land in the town of Summerton, county and State aforesaid, and warranted the title to same; that in the year 1908 the Northwestern Railroad Company of South Carolina commenced an action to recover a portion of said lot extending one hundred feet from the center of its track, by virtue of a deed from the said E. M. Briggs and R. R. Briggs, said railroad company having acquired said title, and having been in full operation,, several years previous to the conveyance of said lot to the plaintiff herein, as aforesaid; that at the time of the commencement of the action by the said railroad company against the plaintiff, the said plaintiff vouched the said *185 R. R. Briggs, trustee, and required him to come in and defend said action, which the said R. R. Briggs, trustee, refused to do, whereupon plaintiff employed attorneys and defended the action, which terminated in a decree of the Supreme Court, as reported in Northwestern Railroad Company v. Colclough, 89 S. C. 555, 72 S. E. 494. The action herein by the plaintiff is for damages on account of a breach of warranty and expenses incurred by reason of defending the suit referred to in 89 S. C. 555, 72, S. E. 494, supra.” Turning to the case of Railroad Co. v. Colclough, 89 S. C. 555, 72 S. E. 494, we find the following statement of facts: “Briefly, it may be stated, that the evidence established a grant, about the year 1888, made upon valuable consideration by the life tenant, of the strip of land here in question, to the grantor of the plaintiff for railroad purposes, and an occupation thereof by the plaintiff railroad company, for its use as a right of way for some period of time, the length of which is not clearly stated, prior to the taking possession of a part thereof’by the defendant, in the year 1904. Notwithstanding the grant by the life tenant was duly recorded in the year 1889, the life tenant and her husband, the latter, being then trustee for the remaindermen and being-invested with a power of sale under the trust deed, undertook to convey to the defendant in the year 1904, certain lands adjoining the track and right of way of the plaintiff, the description thereof calling for a measurement in feet, which include the right of way in part, although the deed calls for the right of way as a boundary. At some date subsequent to the deed of 1904j the life tenant being dead, the defendant erected certain buildings and fences, either wholly or partly within the limits of the grant of the right of way aforesaid. The finding of the Circuit Court as matter of fact is that a right of way was laid out and appropriated to railroad uses, one hundred feet in width on each side of the track of *186 the plaintiff railroad company, in. pursuance of the grant of the life tenant, and subsequently it is further found, that the plaintiff was in the possession and use of such right of way, actually as to part and constructively as to the remainder, at the time of the entry and possession taken by the defendant. It appears, however, by the terms of its charter, the railroad company was only authorized to condemn for the purpose of its right of way a strip of land extending on each side of the center of its roadbed, a distance of seventy-five feet. While, therefore, it had the right, no doubt, to accept a grant for a greater width, its power of condemnation under its charter only extended to a distance of seventy-five feet from its roadbed.” In disposing of the question then under consideration, the Court used this language: -“The defendant, as grantee of the remaindermen or of their trustee, could not recover any part of the land so dedicated to railroad uses, so far as the same was authorized by the charter to be taken for a right of way, and the defendant had no right to take possession of any part thereof so dedicated in accordance with such charter, so as to interfere with the right of easement held by the plaintiff therein, even if the same could be shown to be embraced within the limits of the defendant’s deed. Bridges v. R. R., 86 S. C. 268, 68 S. E. 267; Ann. Cas. 1912a, 1056; Tompkins v. R. R., 21 S. C. 421; Railway v. Reynolds, 69 S. C. 481, 48 S. E. 416; Cureton v. R. R., 59 S. C. 371, 37 S. E. 914. It must be concluded, therefore, that any estate acquired by the defendant in the premises, by the deed of 1904, was subject to the easement previously granted to and then being-used by the plaintiff company, so far as concerns that portion of the. land in question which is embraced within the strip extending seventy-five feet on each side of the center of the roadbed of the plaintiff, and which it had the right to hold as a right of way.” *187 The Court, in conclusion, stated that there was no error in enjoining the defendant, Colclough, from interfering with the plaintiff, in the exercise of its right to the use of the strip of land for railroad purposes, embraced within the limits of seventy-five feet on-each side of the railroad track. These conclusions render unnecessary the additional grounds upon which the appellant’s attorneys gave notice that they would ask that the amount of the judgment be increased. It is the judgment of this Court, that the judgment of the Circuit Court be reversed and the complaint dismissed. Mr. Justice Hydrick concurs in the result. Footnotes [1] Footnote. — See note on existence of public highway, private way, or railroad right of way across land at time of conveyance as breach of covenants, in 30 L. R. A. (N. S.) 833, and 48 L. R. A. (N. S.) 619, and also note as to private way in Ann. Cases, 1913d, 440.