Railway v. Reynolds , 69 S.C. 481 ( 1904 )

Some time in 1882, the Greenwood, Laurens and Spartanburg Railway Company made entry upon a tract of land in Abbeville, now in Greenwood, County, known as the McGhee tract, containing 260 acres, more or less, the property of Bennett Reynolds, Sr., for the purpose of surveying and locating its railroad thereon. Bennett Reynolds, Sr., died July 3, 1883, leaving of force a will by which he devised the McGhee tract to his son, Benjamin Franklin Reynolds, for life, and "at his death, to his children or their children who may be living at that time." No conveyance having been obtained by the railway company from Bennett Reynolds, Sr., on October 13, 1883, B.F. Reynolds, Jr., the life tenant, by his deed conveyed to the railway company a right of way two hundred feet wide through the lands, along the line of which the road was subsequently constructed. No notice of entry for construction was served upon the children of B.F. Reynolds, Jr. This right of way has been used continuously ever since by the Greenwood, Laurens and Spartanburg Railway Company and its successors. B.F. Reynolds, Jr., the life tenant, having died May 30, 1901, on October 11, 1901, the defendants, J.B. Reynolds Emma R. Reynolds, F.B. Reynolds, Eva Reynolds and W.T. Reynolds, his only children, claiming the McGhee tract as remaindermen under their grandfather's will, presented a petition in the Court of Common Pleas for Greenwood County, praying the Court to have assessed, under the condemnation statute, the amount of compensation and damages to which they were entitled for the use of said strip of land by the Charleston and Western Carolina Railway Company, the successor of the Greenwood, Laurens and Spartanburg Railway Company. Upon hearing the petition, Judge Townsend granted the usual order, directing the clerk of Court to proceed to empanel a jury to ascertain the amount of compensation and damages that should be paid by the defendant railway company to the petitioners. The clerk of Court gave due notice of the filing of such order, and fixed a day for making the assessment. The plaintiff, the Charleston and Western Carolina Railway Company, denying the right of the Reynolds heirs to have the assessment made, then brought its action to have them and the clerk of Court perpetually enjoined from going further with the said proceedings, and, pending the determination of the issues, for a temporary injunction to stay proceedings under the petition. On October 18, 1901, a preliminary injunction was granted by Judge Gage, and at a subsequent hearing on November 1, 1901, he ordered that the injunction should continue until the action was tried, or until the further order of the Court. By the consent of all the parties, the cause was referred on December 19, 1902, to W.J. Moore, master for Greenwood County, to take the testimony and to report his findings both of law and fact. The master found that the claimants were entitled to compensation for the use of the lands by the railway company, but that they could not recover under the statutory proceedings, solely on the ground that the right was denied; and recommended that further proceedings under the statute be permanently enjoined, but without prejudice to the rights of the claimants to bring a separate action against the Charleston and Western Carolina Railway Company for the assessment of compensation and damages. Both sides excepted to the master's report, and the cause came on to be heard on the exceptions before Hon. Joseph A. McCullough, special Judge, at a special term of the Court of Common Pleas for Greenwood County. In his decree, filed June 4, 1903, Judge McCullough sustained the finding of the master that the Reynolds heirs were entitled to compensation, but overruled his finding that they were not entitled to recover under the statutory proceedings; and adjudged that the case should proceed as though the temporary injunction had never been obtained. From this decree the plaintiff has appealed, and by his exceptions asks, in effect, that the following propositions be sustained:

1. That the construction of the railroad of the Greenwood, Laurens and Spartanburg Railway Company across the lands in question was begun during the lifetime of Bennett Reynolds, Sr., with his knowledge and consent, and that this amounted to his giving a right of way over them, and all persons claiming under him are barred by the statute of limitations of twelve months provided by the condemnation statute, section 2196, Civil Code, and applicable to such cases.

2. That the conveyance of the right of way over said lands by B.F. Reynolds, Jr., the life tenant, gave to the railway company a good title against all parties claiming under the will of Bennett Reynolds, Sr., which title has been transferred to the plaintiff in this action.

3. That B.F. Reynolds, Jr., did not take a fee defeasible, but the remainders were contingent, and the remaindermen had no such interest in the said lands as to entitle them to be called owners, or to give them the right of compensation for the use of the same by the railway company, and, therefore, it was not necessary for the railway company to condemn their interests.

4. That under the statute of this State, upon the condemnation of lands, all the rights and interests whatsoever of all persons interested in such lands are forever cut off, and all such persons are remitted to the fund paid by the party condemning such lands, and that for this reason the defendants, as contingent remaindermen, had the right, and were bound, to institute proceedings, under the statute, for compensation within twelve months after the Greenwood, Laurens and Spartanburg Railway Company went into possession, and that their action is barred by reason of their delay until after the death of B.F. Reynolds, Jr.

5. That the defendants were adults when the Greenwood, Laurens and Spartanburg Railway Company took possession of said lands, and being fully aware of such possession, it became their legal duty to institute proceedings for compensation against said railway company within twelve months, and failing in this, they are barred by the statute.

7. That the Greenwood, Laurens and Spartanburg Railway Company acquired title by adverse possession of the strip of land in dispute, and that twenty years continuous use by it and its successors has given them a prescriptive right of way that cannot be disturbed.

8. That plaintiff's denial of defendant's right to compensation and damages made their proceeding to assess them improper and illegal, until such right should have been established in an independent action or proceeding.

9. That in any event the defendants could recover compensation only for the value of their contingent interests in the land when the Greenwood, Laurens and Spartanburg Railway Company took possession of them, with interest from the date of the taking.

Bennett Reynolds, Sr., gave no express permission that the railroad should be constructed over his land, and it is clear from the evidence that the company did not begin to construct its road over the lands in his lifetime, but only surveyed and located the route, and hence the permission to construct, referred to in section 2196 of the Civil Code, cannot be inferred from his inaction or silence. It follows that the provision of that section, which requires the owner of land who permits the construction of the railroad over his land to be entered upon, to file his petition for compensation within twelve months after the completion of the road, had no application at the time of the death of Bennett Reynolds, Sr. The first, second and third exceptions should, therefore, be overruled.

Under the will of Bennett Reynolds, Sr., his son, B.F. Reynolds. Jr., took a life estate in the land, with remainder to his children and grand-children, the interest of each being contingent upon surviving B. F. Reynolds, Jr. The remainder was, therefore, contingent.Faber v. Police, 10 S.C. 376.

The appellant insists in its fourth, fifth and sixth exceptions, that it follows from this construction of the will that the conveyance of the right of way by B.F. Reynolds, Jr., the life tenant, barred the rights of the remaindermen and all others. It is true, that it was held in Tutt v.R.R. Co., 28 S.C. 388, 5 S.E., 831, and Ry. Co. v.Scott, 38 S.C. 34, 16 S.E., 185, that a life tenant in possession was to be regarded the "owner" referred to in the condemnation statute, and that his deed was sufficient to protect the railroad company against remaindermen and others interested; but upon this question these case must be regarded overruled by the case of Cureton v. R.R. Co., 59 S.C. 371,37 S.E., 914, where the sounder doctrine is laid down that the life tenant is in no sense empowered to consent to the taking of the interest of the remaindermen or of others interested in the property, or to collect the compensation due to others guaranteed by the Constitution for such taking of their property. The deed of B.F. Reynolds, Jr., therefore, conveyed nothing to the railroad company except a right of way for his lifetime, and had no effect upon the claim of the remaindermen for compensation.

This brings us to the consideration of the most important question in the case. First. Did the contingent remaindermen have the right, under the condemnation statute, to have the value of their interests in the land taken by the railroad company assessed before such contingent interest had become, by the death of the life tenant, vested fee simple estates, carrying with them the right of possession? Second. If they did have such right, have they failed to exercise it for such length of time as to be barred by any statute of limitations? The first question depends upon the signification given to the term owner in the condemnation statute, for it provides that the railroad company may institute proceedings looking to the compensation of the owner for taking his land; and when the railroad enters upon construction with the owner's permission and fails to condemn then, that the owner may institute like proceedings on his own behalf.

It seems very obvious that the General Assembly in enacting the condemnation statute must have intended to provide a method by which every person interested in the land should have the value of his interest judicially ascertained and paid for, and that the corporation should be able to obtain a perfect title once for all, and not be forced to have its title clouded and its business, in which the public is interested in so many ways, liable to interruption by future claims to the property. To carry out this design, the broadest and most extensive signification should be given to the term owner wherever it occurs in the act, and it should be held to embrace all who have any interest in the land, present or future, vested or contingent — any interest or estate which the law regards of sufficient value for judicial recognition. It takes the sum of all these interests to make the fee, and all must be taken together to constitute full ownership. This is in accord with the broad meaning assigned to the word land as used in this statute in the case of Ross v. R.R. Co., 33 S.C. 477,12 S.E., 101. There is no practical difficulty in the separate valuation by the jury of the interest of each part owner of the land.

This view is not inconsistent with any decisions of this Court, except that in Tutt v. Ry. Co., 28 S.C. 383,5 S.E., 381, and others following that case, which, as we have seen, have been practically overruled. In Endlich on the Interpretation of Statutes, at section 96, it is said: "Under statutes providing for compensation to the `owner' of lands taken for highways, railways, or the like, the term applies to any one having a legal interest in the same, whether his estate be an estate in fee or less than a fee."

There are numerous other authorities sustaining the same view. 3 Elliott on Railroads, secs. 1023, 1025; Pierce on Railroads, 185; Lewis on Eminent Domain, sec. 335; 10 Am. Eng. Ency. Law, 1194; Parks v. Boston, 15 Pick., 198; Watson v. N.Y. Central R.R. Co., 47 N.Y., 161; R.R. Co. v. Williams, 54 Pa. St., 109.

The principle is thus strongly stated by Chief Justice Parsons in the case of Ellis v. Welch, 6 Mass. 251: "Any person having an interest in the land, either as lessee for years, tenant for life, or for any greater estate of freehold, as also he in reversion or remainder, is an owner, within the provision of this section; because, being within the mischief, he is within the remedy." We, therefore, conclude that the term "owner" in the statutes includes the contingent remaindermen who are the claimants here.

It follows, from this conclusion, that the railroad company could have barred the rights of these contingent remaindermen by making them parties to condemnation proceedings, and further, if they permitted, without compensation, the railroad company to enter upon the construction of the road in the lifetime of the life tenant and failed to institute, on their own behalf, proceedings for compensation within one year after the completion of the railroad, such proceedings would be barred, under section 2196 of the Civil Code. It is not denied that the railroad company did enter upon the construction of the road and that it was completed many years ago. The permission of the owner for entry and construction before compensation would ordinarily be presumed from this state of facts. Rankin v. R.R. Co., 58 S.C. 532,36 S.E., 997. It appears from the record, however, that the claimants were minors when the entry was made and the railroad built, and hence they were incapable of giving any binding permission. The statute allows only two classes of land owners to prosecute condemnation proceedings: (1) those on whom the railroad company has served notice under section 2187 of the Civil Code, and who have allowed the company to enter without signifying their refusal or their consent; and (2) those who, in the absence of the formal statutory notice, have permitted the company to enter upon the construction of the railroad through their lands without previous compensation. These remaindermen never having been served with notice by the railroad company, and having been infants at the time of construction incapable of giving permission to the company to enter, the statute provides no remedy for them, and hence they are not barred by failure to institute proceedings under the condemnation statute within one year after completion of the road through the land. They really had no remedy except an ordinary action for damages, and this would not be barred until six years after the falling in of the life estate. B.F. Reynolds, Jr., the life tenant, died May 30, 1901, and the six years within which his children, the remaindermen, could have brought their action for damages for the appropriation of their property, under section 112 of the Code of Procedure, has not yet expired.

The foregoing discussion disposes of the exceptions from the fourth to the twelfth, inclusive. The defendants are not, as we have seen, barred by the statutory limitation of twelve months, nor are they barred, if we apply by analogy the limitation of six years provided by the Code of Procedure.

The exceptions do not raise the question that the claimants could not have their damages assessed by a condemnation jury on the ground that they do not fall within either of the classes of land owners above referred to, who are authorized by the statute to prosecute the condemnation proceedings which they have undertaken. Therefore, while I think, as indicated above, that they do not fall within either of these two classes of land owners, and hence should have brought an ordinary action for damages instead of proceeding under the condemnation statute, there is no basis in the exceptions for reversing the decree of the Circuit Judge on this point, and applying the doctrine relating thereto stated in Cureton v. R.R. Co., supra. In the absence of an exception raising the question, the Court is bound to consider the case as if land owners in the situation of the claimants were allowed to obtain compensation under the statute.

The appellant's next position is that the statutory proceedings instituted by defendants should be perpetually enjoined, because the statute has no application in any case where the right to compensation is denied, and that the method provided by it cannot in such case be used even for the mere ascertainment of the amount after the right to compensation has been determined in another proceeding. The cases of Ry. Co. v. Ridlehuber, supra, and Burton v. R.R. Co., supra, are relied on to support this proposition. Without detailed analysis of the facts of these cases, or the language of the Court, it seems to me they decided nothing more on this point than that the condemnation statute afforded no means of testing the right to compensation, and for that reason an effort by the land owner to obtain compensation under the statute would be enjoined at the instance of the railroad company until the disputed right had been determined. It is true, in Cureton v. R.R. Co., supra, an ordinary action for compensation was sustained on the ground that the condemnation statute had no application to the facts alleged in the complaint; but in that case it was held that the statute made no provision for proceedings by an owner who had signified his refusal to consent to the taking of his land without previous compensation, in response to a notice from the railroad company, under section 2187 and 2188 of the Civil Code; and the company having failed to carry on the statutory proceedings looking to the ascertainment of the amount, the owner had no remedy either to establish his right to compensation or to ascertain the amount except to bring his action.

The true principle which I venture to think these decisions lay down is, that in those cases where the procedure provided by the statute is applicable to the ascertainment of the amount, such procedure will be enjoined when the right to compensation is denied until the right is determined in the action for injunction. For example, if the owner of the land should permit the railroad company to enter upon the construction of the road and then file his petition, under the statute, for compensation more than twelve months after the completion of the road, and the railroad company should institute an action to enjoin the proceedings on the ground that the right to compensation was barred by the lapse of time, it would manifestly be unreasonable to hold that the statutory limitation and the statutory proceeding had no application, because the right was denied on account of the limitation prescribed by the statute itself. In such case the proceeding by the owner would be enjoined until the question in issue should be decided. Having held that the right to compensation exists in this case, there is no ground furnished by the exceptions to refuse to allow the amount of compensation to be determined under the condemnation statute. The thirteenth and fourteenth exceptions should for these reasons be overruled.

The remaining question is, should the compensation to the defendants be measured by the present value of the fee in the land taken, or by the value of the fee at the time the land was taken, or by the value of the defendants' contingent interest in the land at the time it was taken. The defendants' proceeding contemplates the ascertainment,under the statute, of compensation for taking their property. Their property which was taken was a contingent interest in the land appropriated by the railroad company. As we have seen, it was that interest which would have been valued if the proceedings had been instituted either by the railroad company or the claimants at that time. They can have no higher right now under the statute than they would have had at that time. It is the ascertainment only that has been postponed. The compensation should, therefore, be based on the value of the contingent interest at the time of the appropriation, October 13, 1883, with interest from that date. This view is fully sustained by authority.

In the leading case of Parks v. Boston, 15 Pick., 198. Chief Justice Shaw thus states the rule: "The true rule would be, as in the case of other purchases, that the price is due and ought to be paid, at the moment the purchase is made, when credit is not specially agreed upon. And if a pie-powder court could be called on the instant and on the spot, the true rule of justice for the public would be, to pay the compensation with one hand, whilst they apply the axe with the other; and this rule is departed from only because some time is necessary, by the forms of law, to conduct the inquiry; and this delay must be compensated by interest. But in other respects the damages must be appraised by the same rule as they would have been on the day of the taking. * * * The jury was correctly instructed, that in the estimate of damages done to an estate partly taken for the public use, the value of the estate on the day of the taking, was the true value to be taken by the jury in their assessment of the damages." See, also, R.R. Co. v. Woodruff, 4 Am. St. Rep., 51, and note; Winona v. R.R. Co., 88 Am. Dec., note at page 117, and numerous authorities cited; Stafford v. Providence (R.I.), 14 Am. Rep., 710. The fifteenth exception should, therefore, be sustained, and the measure of compensation should be the value of the defendants' contingent remainder at the time of the taking, October 13, 1883, with interest from that date.

With this modification, the judgment of the Circuit Court should be affirmed.