Tompkins v. Augusta & Knoxville R. R.

Citations

• 21 S.C. 420
• 1884 S.C. LEXIS 114

Syllabus

<p>1. In action by the heirs at law of a testator against a railroad company to enjoin the construction of its road across the lands of testator, devised to his widow, but claimed by plaintiffs as residuary devisees, the complaint alleged that the widow, now deceased, intestate, had renounced her devise and claimed dower in all of her husband's lands. Held, in subsequent action between the same parties, that they could not now deny this allegation and claim as heirs at law of their mother.</p> <p>2. After evidence offered of facts and circumstances to show that a railroad company had entered by permission the lands of plain biff, it was competent for defendant to ask its witness whether there “was any act of the owner indicating a dissent.”</p> <p>3. Plaintiff could not testify as to the contents of letters written by him to the president of the defendant company, no notice having been given to defendant to produce the letters themselves. Nor did such testimony, objected to by defendant, become competent upon defendant's testifying, without objection, to such contents.</p> <p>4. Where a railroad company constructs its road-bed over lands of another by permission of the “owner,” it is not a trespasser, and the holders of the legal title to such land cannot maintain an action for the recovery of the strip of land so occupied by the railroad company and for damages therefor.</p> <p>5. Where a railroad company made entry upon land and constructed its road-bed thereon by permission of the “owner” (which permission may be inferred from the facts and circumstances), such entry is not unlawful, and the railroad company is only liable thereafter for the value of the land so occupied and for any special damage caused by such occupation. Gen. Stat. of 1872, ch. lxiii. | 83.</p> <p>6. The word “owner,” as used in this section of the act, means the person who has control of the land; therefore, permission given by executors, who had, under their will, a power of sale for purpose