July 30, 1904. The opinion of the Court was delivered by The defendants, except T.C. Turner as clerk, under a claim based upon the third clause of the last will and testament of Bennett Reynolds, the elder, to the McGhee tract of land, containing 264 acres, through which the track and road-bed of the Charleston and Western Carolina Railway Company was located, after the death of B.F. Reynolds, which occurred in the month of May, 1901, who by said third clause of the last will and testament of Bennett Reynolds, the elder, was given a life estate in said lands, presented their petition in the Court of Common Pleas for Greenwood County, in said State, wherein they prayed that under the laws of this State (regulating the proceedings whereby a railroad company could secure a right of way over lands and locate its track and road-bed thereon) they were entitled to have a jury assess their damages against said railway company as compensation for said track and road-bed over their lands. His Honor, Judge Townsend, granted the usual order, referring it to T. C. Turner, Esq., as clerk of the Court of Common Pleas for Greenwood County, in this State, to give notice to the plaintiff railway of the date and place when and where said clerk *Page 496 would impanel a jury to pass upon the assessment to be made for the defendants against the said railway company for the use of said defendants' lands with and by its track and road-bed. Whereupon the said plaintiff, the Charleston and Western Carolina Railway, brought its action against these defendants, asking that the Court would perpetually enjoin the defendants, now and at all times thereafter, from endeavoring to have any assessment made against the railway company for the right of way through the lands aforesaid. On the 18th day of October, 1901, Judge Gage granted a preliminary injunction against the defendants, and ordered that the rights of the parties be determined in this action. By an order, consented to by all parties, the issues of law and fact were referred to William J. Moore, as master for Greenwood County, in this State. By his report he found against the right of the railway company, but also found that the defendants would have to bring their separate action against the railway company to have their damages assessed. Both sides to this controversy appealed from the report of the master, and upon the hearing had before the Honorable Joseph A. McCullough, as special Judge, he decreed that the master was correct in holding that the defendants had a right to have their damages assessed, and he held that the master was incorrect in holding that the defendants could not have their damages assessed in and under the statutory proceedings which had been enjoined by Judge Gage. He, therefore, sustained so much of the master's report as found that the defendants were entitled to damages from the railway company for the right of way over their lands, but overruled the other part of the master's report.
The plaintiff now appeals from the whole decree of special Judge McCullough on the following grounds, alleging error:
"I. In finding and holding that the work of constructing the G.L. S. Railroad across the land involved in this case was not begun until after the death of Bennett Reynolds, Sr.; when, as we submit, the evidence shows that prior to the death of the said Bennett Reynolds, Sr., the said railway *Page 497 company had finished the survey and location of its road, and had taken possession of said land therefor by making the final location of its said road, and staking it out with proper stakes, showing the width and depth of the grading to be done thereon.
"II. In not finding and holding that said work was a step in the construction of said road, and that such construction had been begun before the death of the said Bennett Reynolds, Sr., he and all persons claiming under, by or through him, have been long since barred by the statute of limitation, applicable to such cases, from asking any compensation for the land so taken.
"III. In not holding, under the evidence in this case, that the possession by the railway company for the purpose of final location, staking out and construction, was with the knowledge and consent of the said Bennett Reynolds, Sr., and amounted to the giving by the said Bennett Reynolds, Sr., of a right of way through his land.
"IV. In not holding that the conveyance of B.F. Reynolds to the Greenwood, Laurens and Spartanburg Railroad Company gave a right of way through the said land, which has come to this appellant through successive transiers, and which gives to this appellant now the right to hold said lands against the said B.F. Reynolds, and all other persons claiming under the will of Bennett Reynolds, Sr.; and further, that all such persons are now barred and estopped thereby from asking compensation from the Charleston and Western Carolina Railway Company for the said land or right of way.
"V. In not finding and holding that the defendants in this case, other than T.C. Turner, did not have — when the Greenwood, Laurens and Spartanburg Railroad Company took possession of the strip of land mentioned in the complaint herein — any such interest therein as entitled them to be called owners thereof in any sense, or to any compensation by reason of the said railway company's right of way over said lands; and in not, therefore, holding that it was *Page 498 not necessary or proper under the laws of the State of South Carolina for the said railway company to have condemned the interest of any or all such parties in the said lands.
"VI. In holding that the said defendants, respondents, took a fee defeasible interest in the said lands; and in not holding that their interests therein were contingent remainder interests, and not such interests as entitled them then, or at any time since, to compensation for the use of the said lands or right of way.
"VII. In holding that the defendants, respondents, herein were not bound and did not have the right to institute proceedings under the statute, for compensation, when the Greenwood, Laurens and Spartanburg Railroad Company went into possession of the said lands, and that they could not do this until the death of B.F. Reynolds; and that they are, therefore, not barred from asking compensation, by the statute of limitation of South Carolina, which fixes twelve months within which such compensation or damages can be had.
"VIII. In not holding that as the evidence shows the defendants, respondents, herein were adults when the possession of the said land by the Greenwood, Laurens and Spartanburg Railroad Company began, and as they had full knowledge of such possession, they had the legal right, and the duty was on them then, to take steps under the statute for the recovering damages or compensation because of the taking of the said land; and that by their failure to do so for twelve months, they became and have ever since been barred by the terms of the statute then of force, fixing that time as the limit beyond which such damages or compensation could not be asked, from asking at any time thereafter any such damages or compensation because of such taking of said land.
"IX. In holding that the defendants, respondents, herein would not have had the right to institute condemnation proceedings under the statute, prior to the death of B.F. Reynolds, because it could not then be ascertained who would *Page 499 be entitled as remaindermen to the compensation or damages that might have been fixed in such condemnation; and in not holding under the statutes of the State of South Carolina, then and now of force, all condemnation; proceedings involve and contemplate only one taking of lands sought to be condemned; and that on such condemnation the rights and interests of all persons interested to any extent, and by whatsoever title or claim in such lands, are cut off, and any and all such persons are remitted to the condemnation fund paid by the party condemning such lands, and in not holding that for this reason the defendants, respondents, herein were then bound under the statute to have the said land condemned, and to assert their interest in the fund raised thereby; and having failed to do so for twelve months after the beginning of the construction of said railroad, they are now barred from asking or asserting any such claim against any of the successors in title of the said Greenwood, Laurens and Spartanburg Railroad Company.
"X. In holding that defendants, respondents, were not barred by their laches and estopped by their conduct from instituting the proceeding sought to be enjoined herein, and in not holding that because of such conduct, and their very great delay in instituting such proceedings, they are now barred and estopped from asking any such relief.
"XI. In not holding that the possession of the Greenwood, Laurens and Spartanburg Railroad Company of the said lands, when it began and during its continuance, was as of a fee simple title therein, under color of title thereto, and that such possession was continued, open, adverse and notorious for more than ten years; and that by such possession, irrespective of all other claims and rights, the said railway company acquired a title to the said premises that cannot now be interfered with by the said defendants, respondents, or any other persons, and that the Circuit Judge erred in not so holding, and in not granting perpetual injunction to the plaintiff as prayed for.
"XII. In not finding and holding that the plaintiff and *Page 500 its predecessors in title had acquired by twenty years use a prescriptive right of way over said lands, which cannot now be interfered with by the defendants, respondents, or any other persons.
"XIII. In not finding and holding that if, on no other ground, the plaintiff herein is entitled to perpetual injunction restraining the defendants from continuing the statutory proceedings sought to be enjoined, for the reason that, when statutory proceedings was begun, this plaintiff had denied and continued to deny the right of defendants to compensation or damages; and that this being true, said defendants had no right to institute such proceedings for the purpose of fixing any such damages or compensation.
"XIV. In not holding that the single fact of the denial by the plaintiff of the defendants' right to compensation was, and is, sufficient to make the statutory proceedings instituted by them for the assessment of damages improper and illegal, until they shall have first established the right to such compensation in some other and independent action or proceeding, and in not, therefore, sustaining plaintiff's claim to a perpetual injunction.
"XV. In not at least finding and holding that the defendants should be enjoined from asking compensation under the statutory proceeding begun by them except for the value of the land taken, as of date when the Greenwood, Laurens and Spartanburg Railroad Company took possession of the same and the extent of the then interest of defendants therein, to wit: their contingent remainder interest therein, or such other interest as they had therein, and in not perpetually enjoining the defendants from asking compensation."
We will now undertake to pass upon these exceptions by groups; but to thoroughly understand the application of the same to the master's report and the decree of the Circuit Judge, we think it necessary that the report of the case should contain a copy of said master's report and the Circuit decree. *Page 501
We will now pass upon the first, second and third exceptions. It is well to remember just at this point that the statutes of this State regulating the mode of railroads in acquiring a right of way over the lands of another, definitely announce in section 2196 of Civil Code of South Carolina, volume 1: "Nothing herein contained shall be construed to prevent entry upon any lands for purposes of survey and location." It will thus be seen that in the year 1882 and in the year when several preliminary surveys were made over the tract of land known as the McGhee tract belonging, up to July, 1883, to Bennett Reynolds, the elder, it was in the power of the railway to go upon said lands "for the purposes of survey and location," without the permission of said Bennett Reynolds, the elder. The testimony is convincing that no notice was ever served upon Bennett Reynolds, the elder, that the railway company proposed to locate a right of way over his McGhee tract of land, and it is also convincing that the railway company never began to construct their track or road-bed upon said lands until after October, 1883. Bennett Reynolds died in July, 1883. Mr. T.F. Riley, who obtained the right of way for the railway company, testifies that he did not apply to Bennett Reynolds, the elder, for the right of way, because he was dead, but that he did apply, on the 13th October, 1883, to B.F. Reynolds for such right of way, and received from him on that day a deed for said right of way over the McGhee tract of land. The conviction is forced upon our minds that the testimony does not support these exceptions, and they are overruled.
We will now consider the fourth exception. Not only was B.F. Reynolds living on the McGhee tract of land during the last year or so of the life of his father, Bennett Reynolds, the elder, but by the will of Bennett Reynolds, the elder, the world was advertised that he, B.F. Reynolds, held the McGhee tract of land for and during his natural life and no longer. So, therefore, when the railway company took his deed for the right *Page 502 of way in question, it acquired by said deed what estate the said B.F. Reynolds had in said lands. This Court has recently passed upon the matter of a railway acquiring a right of way from a life tenant, in the cases of Cureton v. Ry.Co., 59 S.C. 371, 37 S.E., 914; Trimmier v. Darden, 61 S.C. 236,39 S.E., 373. In both cases the conveyance of such life tenant was confined to the estate he had in the lands. Now, for this Court to hold that the deed of the life tenant to said lands would operate, under the testimony adduced at the trial, beyond the death of B.F. Reynolds (who died in May, 1901), so as to defeat the right of the children of B.F. Reynolds, under their grand-father's will, would be advancing an incorrect proposition. When Bennett Reynolds, the elder, clothed his son, B.F. Reynolds, with only a life estate in the McGhee tract of land, by the same will be clothed his grand-children, named as defendants here, with the fee simple estate of said lands; and how this Court, in its hearing of the exceptions to the decree of Judge McCullough, can ignore the constitutional provision that private property shall not be taken by railroads from the owners thereof without first making compensation to such owners, we cannot see. This exception is overruled.
We will next examine the fifth exception. We have already held that the railway company first entered upon the McGhee lands for the purpose of appropriating to themselves a right of way over said lands three and one-half months after the death of Bennett Reynolds, the elder. Therefore, whatever interest B.F. Reynolds, and these defendants acquired in said lands was vested in them by the will of Bennett Reynolds, the elder, for three and one-half months before this railway company asserted their right of way over said lands. B.F. Reynolds had only a life estate. These defendants had their possession of said McGhee landspostponed only till after the death of B.F. Reynolds. Their title to said lands was immediate upon the death of Bennett Reynolds, the elder, with the right of possession postponed. The railway company served no notice upon any one of the *Page 503 defendants that it would require so much of their lands as were necessary for a right of way. This exception is overruled.
We will next consider the sixth exception. The language of the will of Bennett Reynolds, the elder, was as follows: "3. I devise and bequeath unto my son, Benjamin Franklin Reynolds, all that tract of land on which he now resides, * * * to have, use and enjoy the same during said B.F. Reynolds, natural life, at his death to his children or their children who may be living at that time." As B.F. Reynolds only had a life estate, who had the fee cast upon them by the death of Bennett Reynolds, the elder? It must vest in some one. By section 2483 of the Civil Code of South Carolina, volume 1, it is provided: "No words or limitation shall be necessary to convey an estate in fee simple by devise, but every gift of land by devise shall be considered as a gift in fee simple, unless such a construction be inconsistent with the will of the testator, expressed or implied." The children of B.F. Reynolds were in esse at death of testator. So this provision of the will gives to the children of B.F. Reynolds a fee simple estate in the tract of land. Title vested in them, as before remarked, on the death of testator, but possession postponed until the death of B.F. Reynolds. The Circuit Judge suggested that it might be a vested fee defeasible, citing Rivers v. Fripp, 4 Rich. Eq., 277, and Boykin v. Boykin, 21 S.C. 530, in support of the proposition. We think, however, that the authorities in our State support the proposition that the defendants took as contingent remaindermen. Faber v.Police, 10 S.C. 376. This exception is, therefore, overruled.
We will next examine the seventh, eighth and ninth exceptions. Appellant states the question presented by these exceptions to be, "Whether or not, assuming that the respondents had such interests in these lands as could be condemned, they have lost their right to compensation therefor by failing within twelve months from *Page 504 the completion of the road to ask compensation as provided by the statute." The sections of the Civil Code of South Carolina, volume 1, 2187 (1550 of Gen. Stat. of 1882); 2188 (1551 of Gen. Stat. of 1882), and 2196 (1558 of Gen. Stat. of 1882), appear in General Statutes as follows:
"1550. Whenever any person or corporation shall be authorized by charter to construct a railway, canal, turnpike or other public highway, in this State, such person or corporation, before entering upon any lands for the purpose of construction, shall give the owner thereof (if he be sui juris) notice, in writing, that the right of way over said lands is required for such purpose, which notice shall be given at least thirty days before entering upon said lands; and such notice shall be served upon such owner in the same manner as may be required by law for the service of the summons in civil actions. If the owner shall not, within the period of thirty days after service of said notice, signify, in writing, his refusal or consent, it shall be presumed that such consent is given; and such person or corporation may thereupon enter upon said lands: Provided, however, That the owner of said lands may be entitled to move for an assessment of compensation in the manner hereinafter directed.
"Sec. 1551. If the owner of said lands shall signify his refusal of consent to entry upon his lands, without previous compensation, the person or corporation requiring such right of way shall apply, by petition, to the Judge of the Circuit wherein such lands are situated for the empanelling of a jury to ascertain the amount which shall be paid as just compensation for the right of way required, in which petition shall be set forth a description of the lands, the names of the owners, the purposes for which the lands are required, and such other facts as may be deemed material. On the hearing of such petition, the Circuit Judge shall order the same to be filed in the office of the clerk of Court of Common Pleas for said county, and shall further order the clerk of the Court to empanel a jury of twelve to ascertain the compensation for the use of the lands required; and it shall be *Page 505 the duty of said clerk, immediately on receiving such order, to give the owner of the lands notice thereof, in writing, and of the day which shall be assigned. On the day assigned, the said clerk, in the presence of the parties, if they shall attend, shall select the names of twenty-four disinterested freeholders of the county, and from that number shall draw the names of twelve to act as jurors, and shall cause those so drawn to be forthwith summoned to meet at such place and at such time as he may assign, for the purpose of examining said lands, and ascertaining the compensation to be made for the right of way over the same; it shall further be the duty of said clerk, in person or by his deputy, to attend at the same time and place for the purpose of organizing the jury; and he shall have power to summon from the vicinage other disinterested freeholders to act as jurors in the stead of any of those first summoned who shall fail to attend, or who shall be objected to by either party on the ground of disqualification on account of interest. * * *
"Sec. 1558. Nothing herein shall be construed to prevent entry upon any lands for the purposes of survey and location; and if in any case the owner of any lands shall permit the person or corporation requiring the right of way over the same to enter upon the construction of the highway without previous compensation, the said owner shall have the right, after the highway shall have been constructed, to demand compensation, and to petition for an assessment of the same in the manner hereinbefore directed: Provided, Such petition shall be filed within twelve months after the highway shall have been completed through his or her lands."
We see that the appellant labors under a mistake. He refers in his argument to what he says is a fact, viz: that all these defendants were adults at the time this right of way was conveyed by the deed of the life tenant in October, 1883. This is a groundless assumption in this case, for the master in his report sets up as a fact that the ages of these defendants were from forty years to twenty-four years at the time of his report. April 28, 1903, from which it follows that all the *Page 506 defendants were minors at the time of the construction of the railroad. This finding was not excepted to, and is, therefore, binding upon all the parties to this action. It seems to us that this statutory remedy as to rights, duties and liabilities of railroads and private parties, as well as corporations, in the matter of rights of way, as to those falling within the statute, is exclusive of any other methods to secure rights of way over the lands of another; and, further, that if this scheme of the law is upheld by this Court, the defendants, respondents, who may fall without the condemnation statute, have lost their cause, and the Circuit Judge would be in error; for certainly the proviso to section 1558 declares: "Provided, such petition shall be filed within twelvemonths after the highway shall have been completed throughhis or her lands." It is a fact, not denied in this action, that this right of way was acquired through the life tenant in the year (October) 1883, and that the railway was completed in 1884. This proceeding on the part of the defendants was begun in October, 1901 — certainly far longer, in point of time, than twelve months after the railway was completed. The Circuit Judge decreed that the right to have the compensation assessed to the defendants now exists and shall be enforced in the method as set out in the statutes of our State regulating obtaining rights of way.
Let us examine with care the law as settled by our decisions in this State. It should be conceded that in this case the plaintiff railway was not a trespasser upon the McGhee tract of land, for it entered said land under a deed made to the railway for a right of way thereover by the life tenant, B.F. Reynolds. Tompkins v. R.R. Co., 2 S.C. 421;Cureton v. R.R. Co., 59 S.C. 377, 37 S.E., 914. It must also be conceded that the railway company caused no notice of their intended entry upon said land to construct their railway to be served upon the defendants or any one of them. It must also be conceded that the plaintiff railway now denies that the defendants have any right to compensation for the right of way over their lands. Under these circumstances, *Page 507 what do our decisions establish to be the law applicable here? In the case of R.R. Co. v. Ridlehuber, 38 S.C. 308,17 S.E., 24, after a painstaking statement of the provisions of the statute law of this State as to condemnation proceedings governing the obtaining of rights of way over the lands of others by railroads, Chief Justice McIver, as the organ of this Court, said: "From this brief review, it seems to us obvious that while a special mode of proceeding has been prescribed for ascertaining the amount of compensation to which the land owner, in a case like this, shall be entitled, where the right to compensation is either conceded or has been already determined, there is no mode prescribed by which such right can be tested when it is denied."
Next in order was the case of Cureton v. R.R. Co., 59 S.C. 371. In this case it was held that when a railroad company serves notice on a land owner that it requires a right of way through his land, and notice in writing refusing such consent is served on the company and it takes no steps to condemn, the owner may bring an action to try his right to and amount of compensation. In this case the case ofR.R. Co. v. Ridlehuber, supra, was affirmed. See, also,Glover v. Remley, 62 S.C. 56, 39 S.E., 780.
Next in order is the case of R.R. Co. v. Burton, 63 S.C. 348,41 S.E., 451. In this case the right of the land owner to compensation for injuries to the defendant by right of way of the railroad was denied by the railroad. Held, that such disputed right was first to be tried, and that condemnation statutes of this State do not furnish a method of trying that right. Affirming R.R. Co. v. Ridlehuber, supra.
By these authorities it is established in this State that where the right of compensation to a land owner for a right of way over his lands is denied by a railway company wishing such right of way, that the statutes of this State providing the machinery for determining the compensation to be paid for such right of way do not provide any means to try the right. But our Court of Common Pleas, having a general jurisdiction, has the power to try such right. Cureton *Page 508 v. R.R. Co., supra; R.R. Co. v. Burton, supra. Thus it is made manifest that the land owner is not dependent alone upon the condemnation statutes, for if the railroad denies his right to condemnation and he does not fall within the terms of such condemnation statutes, he may have his right tried elsewhere.
In this case the railroad denies the right of condemnation, and in an action set in motion by the railroad itself, that right has been decided to exist. Inasmuch as defendants' right to compensation was denied, and inasmuch as they were minors at the time of the construction of the railroad and could not give consent to entry for construction, it is clear that the case of defendant does not fall within the condemnation statutes, and it must follow that the time within which proceedings for condemnation must be commenced has no application to defendants' case. We overrule the exceptions of appellant, and affirm the conclusion of the Circuit Judge.
We will say further, relating to the mode of proceeding in the ascertainment of the compensation to be paid the land owners: The Circuit Judge, in his decree herein, orders that such compensation be ascertained under the method laid down in the condemnation statutes, to wit: before the clerk of Court and a jury of twelve men. We see no error in this method of procedure. It was that virtually adopted by the Court in R.R. Co. v. Burton, supra. It has also the sanction of the case of City Council of Greenville v. Mauldin,64 S.C. 433, 25 S.E., 200. It was competent for the court of equity, having acquired jurisdiction of the case, to render full relief by providing for the assessment of compensation by the ordinary methods, but it is a convenient and expeditious mode of procedure, after determining the right of compensation, to use the machinery provided in the condemnation statute.
Appellant in the tenth exception claims that defendants are barred by laches in the assertion of their rights. These rights occurred in May, 1901, and they brought a proceeding *Page 509 in October, 1901. What we have already held is a sufficient answer to this exception. It is overruled.
We will now examine exception eleven. Railways do not obtain a fee simple title to lands under condemnation proceedings. The deed of B.F. Reynolds was not under those statutes. He had only a life estate, and he could convey no more. This exception is overruled.
We will now examine exception twelve. The occupation of land under a deed from a life tenant does not allow such occupation to be a shield against the rights of remaindermen immediately after the death of life tenant. This exception is overruled.
We will now pass upon exceptions thirteen and fourteen. The defendants could not know in advance of their proceedings against the railway company that their right to compensation would be denied. It was a proper order of Judge Gage until the question of right could be determined. Such, we think, was the practice approved of in one of the late cases decided by this Court — R.R. Co. v. Burton, supra; R.R. Co. v. Ridlehuber, supra. These exceptions are overruled.
Lastly, we will pass upon the fifteenth exception. The Court is of the opinion that in the assessment by the jury of the compensation to be paid to the defendants for the right of way over their lands, the value of defendants' contingent remainder in such right of way must be ascertained as it existed in October, 1883, when construction of the railroad began, and that compensation be allowed on such valuation, with interest from such date.
It is the judgment of this Court, that the judgment of the Circuit Court be and is hereby affirmed.
MR. JUSTICE JONES. I concur, understanding that the manner of compensation to be allowed is the value of defendants' contingent remainder at the time of taking, with interest. *Page 510
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