Ross v. Railway Co.

Citations

• 33 S.C. 477
• 12 S.E. 101
• 1890 S.C. LEXIS 164

Syllabus

<p>1. Authority conferred by charter to construct a railroad gives the right to take and condemn lands and rights of way and to cross or run along highways and other ways. Where, therefore, the General Statutes prescribes the manner of acquiiúng rights of way over “lands,” and the mode of fixing the compensation, the term “lands” includes all rights or easements growing thereout. Therefore where a railroad is constructed along a private right of way, the person entitled to its use cannot maintain an action at law against the railroad company to recover damage's, his only remedy being the proper proceeding under the statute to obtain compensation.</p> <p>2. Even if the party injured could not have proceeded under this statute to obtain compensation, still this action could not be maintained ; for if the railroad was so constructed along this private way as to obstruct it, it was in violation of section 1531, General Statutes, which declares that a railroad shall be laid out “across a highway or other way’ so as not to obstruct the same, and in such case the only action allowed to the party injured is an action to recover the specific penalty prescribed in section 1539.</p> <p>3. Where a complaint alleges an obstruction to a way whereby plaintiff is prevented from passing and repassing, and the testimony shows that twelve feet in width of this way is free from obstruction, there would seem to be a fatal variance between the allegata and the probata.</p> <p>Mr. Ciiiee Justice Simpson, dissenting.</p>