Anderson v. Atlantic Coast Line R. R.

The opinion of the Court was delivered by

This was an action *360 brought by the plaintiff against the defendant company to recover the penalty imposed by statute upon a railroad company. for failing to construct and keep in repair adequate stock guards or cattle gaps. a't the points where the -railroad of the defendant company crosses the lines of certain fences, alleged to belong to plaintiff, on a certain tract of land in Barnwell 'County, of which the plaintiff is alleged to be the owner. The statutory provisions under which the action is brought are found in secs. 1729 and 1730 of the Rev. Stat. of 18.98, and the allegation in the-complaint is-: “That this plaintiff is the o-wner of a certain plantation or tract of land situated in Barnwell County, through which this railroad has been constructed, and which runs through his pasture, crossing his pasture fence in four different places, destroying the use of the same to him, and allowing his cattle to run at large, without constructing or keeping in repair any adequate stock or cattle guard or gap at every point where the line of said railroad of said company crosses or may hereafter cross the line of any fence in this State.” The defendant, by its answer set up as its first defense a general denial of each and every allegation contained in the complaint.

The case came on for trial before his Honor, Judge Townsend, and a jury at November term, 1899, and the jury having found a verdict for the defendant, and judgment having been entered on said verdict, the'plaintiff appeals upon the several grounds set out in the record, which, together with the charge of the Circuit Judge, should be incorporated by the Reporter in his report of the case.

The undisputed testimony shows that on the 21st day of September, 1898, the plaintiff -and his wife executed a deed to the defendant company by which they conveyed to the said company, in consideration of the sum of $100, “all that piece, parcel or strip of land lying, being and situate in the county of Barnwell, State aforesaid, the same being 130 feet wide and 2,573 feet long, more or less, extending through and across my lands in said county, the exact location to be determined by the said company * * * said strip of land is *361 bounded on the east by Lower Three Runs and the lands of Dr. Allen Patterson, and on the west by lands of Richard Cave.” A copy of this deed is set out in the “Case,” and should likewise be incorporated by the Reporter in his report of the case. This deed differs in no respect from an ordinary deed in fee simple, with full conveyance of -warranty, except that immediately after the words above quoted, giving the boundaries of the said strip of land, the following words are inserted: “and the undersigned 'to fix, up the pasture fences.” Testimony was offered tending to show what passed between the parties before the deed was executed, which, in many instancs, was objected to, and the objection was sustained. Some of this testimony, however, was not objected to at the time it was offered, and one of the witnesses for the defense, R. J. Latta, was allowed to testify, without objection, that he was with another witness, A. J. Galloway, who was the agent of the defendant company, charged with the duty of obtaining rights of way, when Galloway first met the plaintiff, on the day before the deed was signed; and he said, amongst other things, that he heard Galloway make the plaintiff an offer — the amount of which he did not remember — which the plaintiff refused, “because he said he would have to have more, he would have his fences to fix.” And Galloway, whose testimony was taken 'by the master out of Court, said: “It was my purpose not to pay one land owner more than another, where the damages were about the same, for the right of way; and in order that we might arrange a uniform price, Mr. Alfred Aldrich preceded me on the line, and found about what would be the' cost of right of ways; and on his estimate the right of way over the land of PI. P. Anderson would be $55. I paid him $100, which was to relieve us, as I said before, of any further expenses relating to fences.” It is true, that there was a motion afterwards to strike out the testimony of Latta above referred to; but after some colloquy between the counsel and the Court, and after hearing the testimony of Latta read by the stenographer, the motion was withdrawn. It was still *362 insisted that Galloway’s testimony was objected to at the time it was taken; whereupon the Court ruled as follows: “The Court orders certain testimony of Mr. Galloway stricken out, and designates the portion which should be stricken out;” but the testimony of Galloway as printed in the “Case” does not designate what portion should be stricken out, and only shows that certain portions of it are noted as objected to; and to that portion of it which we have copied above there is no' note of any objection. Inasmuch, however, as there seems to be some confusion about what particular testimony of Galloway was ordered to be stricken out, we may say that, under the view whioh we take, it is immaterial whether all or any of it was ruled out.

i Under our view, the controlling question in the case is, whether the statutory provisions above referred to are applicable to the case, under the undisputed testimony. In other words, whether a railroad company which has constructed its road through its own land, to which it has acquired a fee simple title by a conveyance from the former owner, can be required to construct and keep in repair adequate stock guards or cattle gaps at every point where its track crosses the line of a fence which such previous owner had built for his own convenience before he parted with the title to the land on which such fence was built. The statute under which this áction is brought reads as follows: “Sec. 1729. The several railroad companies whose line of road lies wholly or partly in this State are hereby required to construct and keep in good repair an adequate stock guard or cattle gap at every point where the line of said railroad of any such company crosses, or may hereafter cross, the line, of any fence in this State.” “Sec. 1730. For every violation of the preceding section, the railroad company so violating shall pay to the owner or owners of the fence upon the line of which such stock guards or cattle gap should have been constructed and kept in repair, the sum of $100, to be recovered by action in the 'Court of Common Pleas for the county in which such stock guard or cattle gap should *363 have been constructed and kept in repair.” It is very manifest that these two sections must be read together, as the one is but the complement of the other. Looking at the former alone, it is very clear that a right of action for the breach of duty imposed upon a railroad company is not conferred upon any one.' We must, therefore, look to the provision of sec. 1730 in order to ascertain what is the penalty prescribed for the violation of the provisions of the preceding sections, and to whom such penalty shall be paid. There it is very plainly provided that such penalty shall be paid “to the owner or owners of the fence upon the line of which such stock guard or cattle gap should have been constructed,” and 'he or they, if more than one, -alone, can bring an action for the recovery of the same. Now, in this case the undisputed testimony shows that, before the defendant company commenced the construction of its railroad, and before the fences which crossed its track were torn down or in any way interfered with, the said company had acquired the absolute fee simple title to the land upon which such fences had previously been built, by the former owner of the land, and had thereby acquired the absolute right to such fences; for it will scarcely be denied that where one purchases a piece of land and obtains a title to the same, he also acquires the right to any buildings, fences or other structures then upon 'the land, unless there is a reservation in the conveyance by the grantor of his right to the same — and there is no such reservation in the deed by which the defendant company acquired title to the land through which the railroad was constructed. So that the plaintiff was not the owner of any fence, the line of which was crossed by the railroad track of defendant, and, therefore, could not maintain an action for the recovery of the penalty prescribed by the statutory provisions upon which the plaintiffs action is confessedly based.

It would have been very different if the defendant company had acquired merely a right of way over the land through which the railroad was constructed, either by agreement with the land owner, or by condemnation proceedings, *364 or in any other way. For in such case the defendant company would have no title whatever to the land, but would simply have acquired a right of way over the land of the plaintiff — a mere easement — which it could only use for the purposes of its railroad, leaving the title to the land in the plaintiff. In such a case the statutory provisions relied on would have had their full application; and if the defendant had failed to comply with the provisions of the statute, the plaintiff would have hacl his right of action for the1 recovery of the penalty imposed. But that is not the case made here. When the plaintiff learned that the defendant proposed to build its railroad through his land,'-he had an option to pursue either one of three courses -: ist. He might by agreement with the defendant company have conveyed to it a mere right of way through his land, by which he would have preserved the right which he is now claiming; or 2d. He might have forced the defendant company to resort to condemnation proceedings in order to obtain the right of way, which also would have preserved the right which he is now claiming; or, 3d. He might, as he did do, sell and convey a certain portion of 'his land, of specified dimensions, to the defendant company. It is conceded that he voluntarily adopted the third alternative, and he must take the consequences of his own act. Suppose he had sold and conveyed -to some neighbor, or other third person, the same land which he sold and conveyed to the defendant company by the same kind of deed, containing no reservations whatever, 'could it, for a moment, be contended that he still retained any right of any kind in the land, or to the fences or other structures 'which may have been upon the land at the time such conveyance was made. Why, then, does a railroad company stand in any worse position? The statute contains no hint or suggestion that the legislature intended-that, under the same circumstances, one rule should apply in -the case of a private individual; and another in the case of a railroad company. Indeed, if anything, it seems to imply the contrary; for when h provides that the penalty shall be paid to the owner of the *365 fence, it seems to imply that it was intended that the statute should apply only where the ownership of the property remained in the former proprietor, and the railroad had acquired only the right of way, a mere easement. There may be, and probably is, very good reason why the legislature should make such a provision as that found in the statutory provisions relied on, where a railroad company has been permitted, by the exercise of the right of eminent domain, to acquire a right of way over the land of another, or has in any other way acquired such right of way, for the protection of the rights and convenience of the land owner, as far as may be consistent with the enjoyment of such easement. But we can conceive of no reason why the legislature should undertake to make such a provision in favor of a land owner who has voluntarily chosen to sell and convey a portion of his land to a railroad company for the purposes of its road, without making any provision for protecting himself from any inconvenience, loss or injury which might result from such absolute sale and conveyance. To use an illustration suggested by counsel for respondent in his argument: Suppose the defendant company should have seen fit, or should hereafter see fit, to establish a station at the point where the railroad track crosses the line where plaintiff’s pasture fences formerly stood; build depots, eating houses, and also sell off lots within the lines of its own lands, with a view to encourage the building up of a town, what would then become of the right which the plaintiff is now claiming, if the company did so, and surely its right to do so could not be questioned, for it has just the same right to use land to which it has acquired the fee simple title as any other landed proprietor has to use his own land. These and other considerations, which might be suggested, are quite sufficient to show that the provisions of the sections above referred to do not apply, and were not intended to apply to a case like this.

We do not think, therefore, that there was any error on the part of the Circuit Judge in the instructions which he gave to the jury upon this point, and all the exceptions *366 raising the questions as we have stated it above, must be overruled.

This is conclusive of the case, and we need not consider the points made by any of the other exceptions, as we do- not regard them as material to the case as made by the undisputed testimony.

2 It will.be observed that we lay no stress whatever upon the language above quoted from the deed — “and the undersigned to fix up the pasture fences” — for several reasons. In the first place, under the view which we have taken, we do not consider those words material; for they certainly do not purport to impose any duty whatsoever upon the defendant company; but, on the contrary, they do purport to impose some duty upon the plaintiff. In the next place, we do not exactly understand what was the intention of the parties in inserting those words. They are certainly ambiguous, and.the parol testimony offered to explain what the parties really meant was rejected— whether rightfully or not, is not made a question in this case. We may say, however, that they purport to impose some duty upon the plaintiff, but what it was is not clear. But, as we have said, we do not regard those words as material, or in any way affecting the conclusions which we' have reached.

3 The counsel for appellant has cited several cases from other States, none of which seems to be applicable> to the view which we have -taken, so far as we can perceive from the statement- made of them in the argument. For example, the case of Poler v. N. Y. Central R. R. Co., 16 N. Y., 476, is represented to hold, “that a company acquiring the right of way by private grant is not released from its statutory obligations as to fencing, &c., even though nothing is said -of it in the deed.” We have no fault to find with that decision as thus stated, for it will be seen in what we have said above, that we concede that where a railroad company acquires a right of zvay by a grant or deed, that the provisions of -our statute do apply; but we *367 contend that where a railroad company acquires an absolute fee simple' title to the land through which its road is constructed, the statute does not apply for the reasons given above. The other decisions cited from New York, and the case from Kentucky, seem to be of the same tenor, and, therefore, call for no further remark. It is difficult to conceive what possible application the case of St. Louis R. R. Co. v. Morris, 35 Ark., 622, which is represented as holding that “a grant of right of way gives no license to overflow grantor’s land, by the unskillful construction of a levee,” can have to the case under consideration; so, also, the case of Missouri R. R. Co. v. Morrow, 32 Kansas, 217, and the case of Heskett v. Wabash R. R. Co., 61 Iowa, 467, seem to relate only to questions as to what constitutes a sufficient cattle guard, whether it is the duty of the company owning the railroad or its lessee to construct cattle guards, and how far the cattle guard shall be constructed beyond the railroad track; and none of these questions arise in our case, for the obvious reason that no cattle guards of any kind have ever been constructed. Besides, these cases from other States are not binding on us; and in the absence of any decision of our own, we have rested our conclusion upon the construction of the terms of our own statute.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.