Tompkins v. Augusta, &c., Railroad

Citations

• 37 S.C. 382
• 16 S.E. 149
• 1892 S.C. LEXIS 37

Syllabus

<p>1. Complaint—Gen. Stat., $ 1550.—Under a statute requiring the owner of land, within thirty days after the receipt of notice in writing that a railroad company requires a right of way over his lands, to give notice in •writing of his refusal of consent to the construction of such railroad upon his lands, or else consent “shall be presumed,” a complaint which alleges that the owner, when he ascertained that the railroad would probably extend across his lands, formally notified the officers of the company that entry by it was objected to, and the company thereafter constructed its road without any proceedings to condemn, does not state facts sufficient to constitute a cause of action, by reason of its failure to state that the notice by the owner was in writing.</p> <p>2. Ibid.—Ibid.—Conclusion on Law.—The use of the word “formally” was not sufficient, as that merely stated a conclusion of law.</p> <p>3. Ibid.—Amendment..—But plaintiff should be allowed to amend his complaint by inserting the words, the mere omission of which constituted the defect in its allegations.</p> <p>4. Right on Way—Notice.—Written notice by the railroad company to the owner, that a right of way would be required, is unnecessary, when the owner has notice otherwise of the intended entry for such purpose.</p> <p>5. Ibid.—Trespass.—Where a railroad company constructs its road-bed upon lands without the consent, actual or presumed, of the owner, and without a judgment of condemnation under the statute, its entry for such purpose was unlawful, and it may be proceeded against as a trespasser.</p>