Sanders v. Southern Railway

The appellant's attorneys, in their argument, state that the two principal questions presented by the exceptions are: First, whether a statutory cause of action is set out in the complaint; and, second, whether the jury should have been instructed that there was no testimony tending to show that the injury was sustained at a "traveled place," within the contemplation of the statutes. I concur in the opinion of MR. JUSTICE HYDRICK as to the first question, but dissent as to the second.

The following testimony appears in the record:

Robert B. Sanders, the original plaintiff, testified as follows: "Q. Do you know whether or not that portion of the city, between Columbus and Line streets, and Addison's court and Line street, is a populous place? Do or not many people live there? A. A good many. Q. Thickly settled? A. Yes, sir. Q. Do you know whether or not that place has been used for more than 20 years by people passing to and fro? A. Yes, sir. Q. That is to say, from Columbus to Line street from Addison's court to Line, and from Addison's court to Columbus? A. Yes, sir. Q. Who passed through there? A. I saw men, women, and children going through there. Q. At all times? A. Well, the children went there principally from school, the men and women passed through any time they wanted to. Q. Now, will you state whether or not there are yards and doorways that open on this track? A. Yes, sir. Q. Do you know where Mr. Doscher's house is? A. Yes, sir. Q. Is not that house on the southeast corner of Line and the railroad track? A. Yes, sir. Q. Will you state whether or not there is a regular doorway, leading from the piazza of that house to the railroad track? A. Yes, sir. Q. Do you know where Shumacher's lots are? A. Yes, sir. Q. Are they or not on the west side of the track? A. Yes, sir. Q. Is not there a doorway leading from these rooms on the track? A. Yes, sir. Q. State whether or not Addison's court at this time was open to the public? A. Yes, sir. Q. Was there or not a constant passage of people from Addison's court to Line street, and from Line street back? A. Yes, sir. Q. Is or not Addison's court a regular public court of the city of Charleston? A. I take it to be such. Q. Just as any other court? A. I take it to be the same as all other courts. Q. Now, Mr. Sanders, you know where the Columbus street crossing is? A. Yes, sir. Q. That is a regular public crossing? A. Yes, sir. Q. Now, Mr. Sanders, don't you recollect there used to be a fence across Addison's court? A. Yes, sir."

Isaac Briggs, a witness for the plaintiff, thus testified: "Q. Will you not state to these gentlemen whether or not people, men, women, and children, pass constantly from Columbus to Line street and from Addison's court up there? A. All my life, since I was a little boy. Q. Did you not, Mr. Briggs, ever know the railroad to stop any one going through there? A. Never did. Q. Did you not see any signs telling you you could not go there? A. Never did. Q. Did or not any railroad people ever warn you to stay off that property? A. No, sir. Q. And you say you saw people walking through there? A. Women and children; men, women, and children. Q. Did they or not pass there just as they would pass through Meeting street, or any place that people pass through? A. I passed through there all the time. I lived on Cooper street 35 years, and I would go from Meeting to Line, and through the railroad to Columbus street, and return the same way, and have never been molested by anybody. I have since this trouble one time; I saw a sign there since this trouble. Q. Will you state whether or not Addison's court is a public court? A. Public thoroughfare for everybody. Q. And you never saw anybody stopped? A. No, sir. Q. And you have known it since you were eight years old? A. Yes, sir. Q. Don't you recollect that fence that used to be across Addison's court? A. I recollect a piece of fence, but it always had an opening to go through. Q. And then it was gradually broken down and you could go through it? A. Yes, sir. Q. It was built there new; how could you go through? A. Through an opening or gate. Q. But there was a fence over a part of it? A. Yes, sir."

C.M. Church, another witness for the plaintiff, testified as follows: "Q. Now, Mr. Church, will you state to the Court and jury whether or not you know the locality between Columbus and Line streets and between Addison's court and Line street? A. Yes, sir; I know it thoroughly from childhood; it was my playground when I was ten years old, in my school days going through from Meeting to the Bennett school, and I would play there in the evening, hunt the ball on the railroad track, and never was stopped. Q. Do you know whether or not men, women, and children generally pass and repass that property? A. Lots of them. Q. Have you or not ever seen any of them turned back, stopped? A. None that I know of. Q. Did you ever see any signs there warning people to keep off? A. I don't remember seeing signs there until lately. Q. Was or not it possible to pass from Addison's court right on to Line street. A. Oh, yes, sir. Q. And did or not people pass from Line street to Addison's court, and from Addison's court to Line street? A. Yes, sir. Q. Is or not that a thickly settled and populous part of the city of Charleston? A. A good many people live there. Q. The old South Carolina and Georgia depot used to be just north of that place? A. Yes, sir. Q. Is there or not a well-beaten track going through there, on the east and west side of that place, from Line to Columbus and from Addison's court to Line street and back? A. Yes, sir. Q. A well-beaten path? A. Yes, sir. Q. And in all the time you have known it — how many years have you known it, 35 years? A. About 45 years. Q. And in that time you have always known people to pass to and fro, without any stoppage by the railroad company? A. Yes, sir."

Patrick O'Grady thus testified in behalf of the plaintiff: "Q. Do you know where Addison's court is? A. I do. Q. Is or not Addison's court between Line street and Columbus street? A. It is; yes, sir. Q. Do you know whether or not people residing in Addison's court pass through there to Line street and back to Addison's court? A. I have seen them; I saw a wagon unload at Mr. Doscher's house, unload wood and go through the railroad into Addison's court, and out through Meeting street. Q. You have seen a wagon unload at Mr. Doscher's and go through Addison's court? A. Yes, sir. Q. Does or not the door of Mr. Doscher's piazza open out on the railroad track? A. It does. Q. And you never have seen anybody stopped from going through there? A. No, sir. Q. How long have you known that place? A. About 35 years. Q. And people have always used it going to and fro; there is a well-beaten path there? A. Yes, sir."

This testimony undoubtedly tended to show that the plaintiff was injured at a place where the public was accustomed to travel, and that the user by the public was open, continuous, and adverse, or upon the invitation of the defendant.

In Strother v. Railway, 47 S.C. 375, 25 S.E. 272, the issue as to whether there was any testimony tending to show that the injury was sustained at a "traveled place" was properly submitted to the jury upon testimony not near so strong as in this case.

The appellant contends, however, that this was not a traveled place, within the contemplation of sections 2132 and 2139, Code of Laws 1902 (now sections 3222 and 3230, Code of Laws 1912), on the ground that the public did not have the right to use said land for the purpose of travel.

In the case of Hankinson v. Railway, 41 S.C. 1,19 S.E. 206, the Court used the following language: "The rule, as we understand it, is that, to constitute ``a traveled place,' it must not only be a place where persons are accustomed to travel, but it must also be a place where persons have in some way acquired the right to travel. * * * The fact that all persons who desired to do so had been accustomed to use the footpath at the crossing in question, with the knowledge and acquiescence of the railroad company, was not of itself sufficient to establish the legal right to cross; but there must be something more, something to show an adverse use of the crossing, or something to show that the railroad company recognized the right of the public to cross at the point in question. The same principles which govern, where the question is as to an alleged right of way over the lands of a landowner, acquired by prescription, must govern here. There the doctrine is that the mere fact that persons have, for any number of years, been accustomed to use the way in question is not sufficient, but there must be something to show that such use was of anadverse character, or that the owner of the soil had in some way recognized the legal right of persons to use the way." The Court then proceeds to quote the following language from the case of Sims v. Davis, Cheves 1, 34 Am. Dec. 581: "The use of every such way is permissive, or held at sufferance, where the claimant has done no act showing that he claimed the right adversely, and the allowance of the use by the owner of the soil has been unaccompanied by any act, which shows a recognition on his part of the right of the claimant to use the road without his permission."

The case of Hankinson v. Railway, 41 S.C. 1,39 S.E. 206, decides that the public cannot merely by using a footpath over a railroad company's right of way, with the knowledge and acquiescence of the railroad company, for more than 20 years, acquire a legal right to travel the pathway; but that it can acquire a legal right to use such pathway, if the user has been adverse, or the railroad company has, during that time, recognized the legal right of the public to use the pathway. The case just mentioned does not characterize the relation which the public, after acquiring such legal right, would sustain to the railroad company, but the case of Matthews v. Railway, 67 S.C. 499,46 S.E. 335, 65 L.R.A. 286, shows it would be that of a licensee.

In the last-mentioned case the Court says: "The public may no doubt acquire a right to use a particular way over lands set apart for a railroad right of way by use clearly shown to be adverse for 20 years, in the sense that, after the lapse of that time, the railroad authorities cannot arbitrarily forbid the use of such way for any reason not connected with the operation of the railroad; but since the company cannot grant its right of way so as to defeat the purpose for which it was acquired, and it cannot be condemned for another highway so as to hinder these uses, it cannot be presumed that there ever was any grant or dedication to a public use inconsistent with the purpose for which the property was acquired by State authority. * * * Those who walked in the path here described entered, not a public highway, but the property of the railroad company as licensees. * * * It is, of course, always a question for the jury to determine whether the way was so plain and so constantly used, with the acquiescence and consent of the owner, as to imply an invitation." The Court then proceeds to quote with approval the ruling in the case ofChenery v. Railroad Co., 160 Mass. 211, 35 N.E. 554, 22 L.R.A. 575, which was as follows: "While long use by the public of a well-defined path across a railroad track does not, as a matter of law, impart a license, still it presents a question of fact for the jury, as to whether a license is to be implied, which would subject the railroad to liability fornegligence." (Italics added.)

The case just mentioned rules that the public may acquire the right to travel a pathway over a railroad company's right of way, when the user has been open, continuous, and adverse for 20 years, and that the railroad company cannot arbitrarily forbid the exercise of such right, unless the use of the pathway would materially interfere with the operation of the railroad and defeat the purpose for which the company was incorporated.

The testimony hereinbefore set out tends to prove that there was a compliance, on the part of the public, with every requirement of law necessary to confer upon the plaintiff the right to use the land for the purpose of travel. We contend that his use of the land was not dependent upon the presumption of a grant or a prescriptive right, but upon the fact that the privilege of a licensee is based upon a legalright, which, during the continuance of the license, entitles him to protection as effectual as if it was founded upon a grant or prescription.

"While a license operates only as an excuse for the act or acts licensed, and passes no interest in the land, it is effectual to justify everything done in accordance with its terms, prior to the revocation, and likewise any acts without which the acts licensed could not be done." 25 Cyc. 643.

There is no case in this State in which it has been decided that a licensee is not entitled to invoke the provisions of the sections hereinbefore mentioned. If a license does not confer a legal right upon the licensee to exercise the privilege therein mentioned, in accordance with its terms, then we fail to discover wherein his position is more advantageous than that of a trespasser. But the case of Matthews v. Railway, 67 S.C. 499, 46 S.E. 335, 65 L.R.A. 286, and Izlar v. Railway, 57 S.C. 332, 35 S.E. 583, both show that a licensee is entitled to ordinary care on the part of the railroad, and that, if the railroad is guilty of negligence towards a licensee, it thereby becomes liable to him for damages, whereas it owes no such duty to a trespasser. As a railroad owes to a licensee the duty of exercising due or ordinary care for his protection, no good reason can be assigned why he is not entitled to the protection afforded by the statutory provisions hereinbefore mentioned, especially as a railroad owes no higher duty to any person except a passenger entering upon a traveled place than it does to a licensee. (Its duty to a passenger is not involved in this case.)

Finally it is contended that there is a material difference between the right of the public to cross and the right to travel along a railroad track. Conceding that there is such difference, it naturally follows that, if the public may acquire the right to cross, there is a stronger reason why it should be allowed to travel along a railroad track, as there would be less danger, and the probability of interfering with the operation of the railroad would not be so great. But it would be unreasonable to suppose that the legislature contemplated so subtle a distinction. Furthermore, the testimony tended to show that the public used the defendant's right of way for walking across as well as along the railroad tracks.

There is another reason why the judgment of the Circuit Court should be affirmed. The testimony tended to show that the public used the so-called "railroad yard" or "railroad avenue" with the acquiescence or upon the invitation of the city of Charleston, in connection with, and incidental to, Addison's court, which was a public playground, and that the defendant railroad company recognized the fact that it did not have the exclusive right of way over the land in question. The fact that there was a gate in the fence that divided Addison's court from the lot over which the railroad was operated tended to show an invitation to the public, not only on the part of the defendant, but of the municipality, to pass through the gate.

The right of the defendant to operate its railroad within the limits of the city was dependent upon the consent of the municipality, which had the power to attach such conditions as it might see fit, or even to refuse to allow the defendant to continue the operation of its road, whenever such action was demanded by the exigencies of the occasion, or to grant a right of way not exclusive in its nature, but to be exercised in connection with the right of the public to use the land as a street or traveled place. There was testimony also to the effect that the public exercised such right, for more than 20 years, openly, notoriously, and adversely to the rights of the defendant, as we have stated, by acquiescence or invitation of the municipality, in going to and coming from the said place of public amusement.

In the case of Matthews v. Railway, 67 S.C. 499,46 S.E. 335, 65 L.R.A. 286, the Court says: "It should be observed the conclusion that the public cannot acquire a way on a railroad right of way, by prescription which is founded on the presumption of a deed, does not imply that title to portions of the right of way may not be acquired by adverse possession, which is founded on possession hostile to the true owner. Neither adverse possession nor the doctrine of equitable estoppel referred to in Crocker v.Collins, 37 S.C. 327 (15 S.E. 951, 34 Am. St. Rep. 752), is involved in this case." See, also, Southern Ry. v.Beaudrot, 63 S.C. 266, 41 S.E. 299.

The adverse user of the said land by the public, for more than 20 years, raised "the presumption of an antecedent exercise of the right of eminent domain by the public authorities." 37 Cyc. 37.

There is no question that the use of the said land was sufficient to make it a "traveled place," within the contemplation of the statute, unless, as contended, the user was without legal right on the part of the public. We have, however, shown that the adverse use of the land by the public for more than 20 years would raise the presumption that the municipal authorities, in the exercise of the power of eminent domain, had set apart the land for the use of the public, thus giving the public the legal right to use the land, in connection with its enjoyment by the railroad company.

For these reasons I dissent.

MR. JUSTICE WATTS concurs in the dissenting opinion.