Rankin v. Sievern & Knoxville R. R. , 58 S.C. 532 ( 1900 )

September 13, 1900. The opinion of the Court was delivered by The Circuit Court sustained a demurrer to (or motion to dismiss) the complaint for insufficiency in stating a cause of action. The complaint, which we copy in full, is as follows: "1. That the plaintiff is and was at the times hereinafter stated, the owner in fee of a certain tract or parcel of land, situate in the State and county above named, through which the line of the Sievern and Knoxville Railroad has since been constructed, and that she was at the time and still is residing on said tract of land. 2. That the defendant, Sievern and Knoxville Railroad Company, is a corporation duly organized and existing under the laws of the State of South Carolina. 3. That the defendant, Carolina Midland Railway Company, is a corporation duly organized and existing under the laws of the State of South Carolina. 4. That on or about the 3d day of May, 1898, the defendants had in their employment a certain gang of hands then engaged in finishing and grading and laying the track, and putting up telegraph poles along the line of the said Sievern and Knoxville Railroad Company, the said gang being, as plaintiff is informed and believes, jointly employed by the Carolina Midland Railway Company and the Sievern and Knoxville Railroad Company, under some arrangement or agreement, the terms of which are unknown to this plaintiff. 5. That said gang of hands, under one Rutledge, as foreman, was employed by both of said defendants, and in the course of their engagement as such, were proceeding along the line of the proposed track of the Sievern and Knoxville Railroad Company, and without having acquired a right of way through the lands of this plaintiff, and were in the act of cutting down two large oak trees of great beauty and value which stood near the residence of this plaintiff, when she approached them and requested them not to do so; whereupon the said Rutledge, foreman of said gang of hands, cursed this plaintiff and ordered her to get away from there or he would put her in the penitentiary, and threatened to strike her, and greatly frightened and intimidated her, she being an old woman, and otherwise maltreated and abused her to her great damage; whereupon her son, Hiram Rankin, came up and inquired the cause of her trouble; whereupon the said Rutledge called the hands employed on the material train, in the employment of both the said defendants, and with great violence and loud cursing, followed the said Hiram Rankin towards the plaintiff's house, threatening and abusing him in a violent manner, and thereupon proceeded to lop off several of the most beautiful branches of the said oak trees, but did not cut them down. 6. That the said defendant, by the said Rutledge and their hands, whose names are unknown to this plaintiff, thus broke plaintiff's close, trod down the grass, and in a most violent and outrageous manner insulted, intimidated and threatened this plaintiff to her damage $10,000, together with the costs of Court."

We think the demurrer was properly sustained, and that the conclusions reached were amply vindicated in the elaborate and learned opinion of the Circuit Court, which is officially reported herewith.

We will only make a brief observation or two. First, treating the the complaint as one for trespass upon real property, with circumstances of aggravation alleged, with a view to exemplary damages. The alleged circumstances of aggravation must be eliminated in determining the demurrer, since to avoid demurrer on this ground, the complaint must show facts sufficient to constitute a trespass upon land. We must also eliminate from the complaint the words "without having acquired a right of way through the lands of this plaintiff," in the 5th paragraph of the complaint, since they present a mere conclusion of law, which is not admitted by a demurrer. We must also eliminate the statement in the sixth paragraph of the complaint, that defendants "thus broke plaintiff's close, c.," since such statement is a mere characterization of facts previously alleged, which in themselves must show a breaking of plaintiff's close. A railroad corporation, chartered under the laws of this State, and authorized to construct a railroad, is not a trespasser for entry upon lands for the purpose of such construction, unless such entry is made without the consent of the owner, and it is necessary to the cause of action to allege the absence of such consent.Tompkins v. R.R., 37 S.C. 382. The complaint, then, is fatally defective for failure to make such allegation. So far as the complaint shows, the only objection ever made by plaintiff was as to cutting down the two oaks, and it appears that they were not cut down. As the route of the railroad was very near plaintiff's dwelling, she must have had knowledge of the first entry for construction, and having made no objection thereto in the manner required by statute, her consent would be presumed, and her only remedy would be for compensation under the condemnation statutes. Verdier v. R.R., 15 S.C. 476; Tompkins v. R.R., supra; Leitzsey v. Water Power Co., 47 S.C. 477.

If the complaint may be treated as one for trespass upon the person, no assault upon the plaintiff is alleged, and mere words under the circumstances stated would not be civilly actionable. We are quite satisfied with the conclusion of the Circuit Court herein.

The judgment of the Circuit Court is affirmed.