Eldridge v. City of Greenwood

Cureton, Judge:

This case concerns the vacated right-of-way of Southern Railway in the City of Greenwood, South Carolina. The Appellants are members of two classes. One class is composed of abutting landowners along the right-of-way. The second class consists of heirs of the original owners of the right-of-way property at the time the right-of-way was acquired. They collectively allege that under Act. No. 2953 of 1845, which authorized the acquisition of the right-of-way by Southern Railway’s predecessor in title, the area encompassed by the right-of-way reverts to them upon the removal of the railroad tracks. The record indicates the predecessor to Southern Railway obtained title to the right-of-way under the 1845 statute by either fee simple deed, condemnation, or statutory grant. The record does not disclose the size of the two classes or the property owned by the members. The two classes have not been certified. The record also does not disclose the specific method by which the railroad obtained the right-of-way through the property of each class member. The parties agree various portions of the disputed five and one-half mile right-of-way were obtained by each of the three methods provided by statute (i.e. fee simple deed, condemnation and statutory grant).

The history of how the railroad’s right-of-way came into existence, its development, and the final decline in its use are detailed in the trial court’s order:

The Act of 1845 provided for the formation of the Greenville and Columbia Railroad Company to construct a railroad from “the town of Columbia to the town of Greenville, passing through the villages of New-berry and Laurens.” The hamlets and towns in the Abbeville District (now Greenwood, Abbeville and Anderson Counties) greatly desired that the Greenville and Columbia Railroad cross the Saluda River and serve the northwestern part of South Carolina. Railway service was all important to the development of commerce and industry. Therefore, there were many rallies and meetings to generate public support and to raise money or capital to pay for the cost of bringing the railroad across the Saluda River and to serve the Abbeville district and to provide a vital rail link to the major cities and towns of South Carolina.

The leaders and citizens of the Abbeville District were successful and the Greenville and Columbia Railroad crossed the Saluda River near Chappels in 1852 and served the hamlets, towns and communities of the Abbeville District. As a result, the little hamlet or town of Greenwood moved from near New Market and Cambridge Streets and laid out a new public square with adjoining streets and roads, on each side of the new Greenville and Columbia Railroad. Roads, streets and later, highways, were located along the said railroad, within the railroad right-of-way, for railroad purposes, to provide public access to the railroad passenger and freight depots and to provide public access to the commercial, industrial and residential establishments located along the railroad. In other words, the whole town of Greenwood grew up and developed along the railroad and the roads, streets and highways were located along side the railroad for railroad purposes and to provide the necessary public access to the railroad. Greenwood went on to become the railroad capital of western South Carolina with five (5) separate railroads. Southern Railway Company later acquired the Green-ville and Columbia Railroad. See, Southern Railway v. Beaudrot, 63 S. C. 266, 41 S. E. 299 (1902).

With the invention and development of the automobile, the transportation needs of the public underwent a rapid change. Transportation and conveyance of passengers and freight by automobiles, buses and trucks soon rivaled that of the railroads. Passenger service by Southern (formerly Greenville and Columbia Railroad) was discontinued, the passenger depot was removed from the center of Greenwood, the C&WC moved its freight depot out of town, the Southern moved its freight depot to South Greenwood, the C&WC railroad removed its tracks from the center of Greenwood, all spur lines servicing commerce and industry were discontinued, and finally, the only thing left through the center of Greenwood was a single main track of the Southern Railroad.

In the 1970s a federal program was implemented to provide for the relocation of the railway tracks from the downtown area to the outskirts of the city. Under this program, the City of Greenwood and Greenwood County acquired the necessary land for the relocation of the tracks by condemnation. The City and County then deeded the acquired property to Southern Railway in exchange for its quitclaim deed to them of its interest in the right-of-way now in dispute. These conveyances occurred in 1984. The Statement of the Case provides “[a] typical section of the right-of-way at the time of relocation consisted of two parallel roads on either side of the vacated track with an unpaved section varying from 25 to 60 feet lying between these two paved roadways.”

The appellants contend the removal of the railroad tracks and the conveyance of the right-of-way to the City and County of Greenwood constituted a breach of the conditions of the 1845 Act resulting in a reversion to them of title to the subject property. The pertinent provision of the 1845 Act provides:

XI. That in the absence of any written contract between the said Company and the owner or owners of land, through which the said Railroad may be constructed, in relation to said land, it shall be presumed that the land upon which the said Railroad may be constructed, together with one hundred feet on each side of the center of said road, has been granted to the said Company by the owner or owners thereof, and the said Company shall have good right and title to the same (and shall have, hold and enjoy the same) unto them and their successors, so long as the same may be used only for the purposes of said road and no longer (emphasis added) ____¹

The Respondents, City of Greenwood, Greenwood County, and the South Carolina Highway Department deny any claim of the appellants to the disputed property. They filed a motion for summary judgment claiming the facts are not in dispute regarding whether the actions of the railroad company amounted to a breach of the conditions of the grant. The trial court granted summary judgment ruling only questions of law were involved. The order held the removal of the railroad tracks and the exchange of rights-of-way did not constitute an abandonment by the railroad of the property for railroad purposes and the disputed property had simply undergone a permitted change in use. The principal issue in this case is whether the removal of the railroad tracks and the conveyance of the right-of-way to the City and County of Greenwood constituted an abandonment of the use of the right-of-way “for purposes of the said [railjroad.” Section XI of Act No. 2953, 1845 S. C. Acts 348.

I.

The trial court found the obvious intent of the 1845 Act was to provide for the conveyance or transportation of persons, merchandise, and produce over a railroad to serve the public need. The court then reasoned that the purpose of the transfer of the right-of-way to the City and County was to effectuate the acquisition of new property which would enable the railroad to serve the public need in a more economical, less hazardous, and more efficient manner, then the right-of-way continued to be used for railroad purposes. We think the trial judge recognized, as we do, that the issue is not whether there has been a failure to use the right-of-way for public purposes, but whether or not the right-of-way is now being used for the purposes of the railroad.

At first glance, it would seem that since the railroad company is not using the easement property at all it cannot be asserted the disputed property is being used for railroad purposes. Ownership of a right-of-way by a railroad company carries with it the right to use the property within the right-of-way for any purpose which furthers the business of the railroad. Sparrow v. Dixie Leaf Tobacco Co., 232 N. C. 589, 61 S. E. (2d) 700 (1950). When land is taken for railroad purposes, the railroad company acquires “not merely the right to construct and maintain a railroad in accordance with the original plans, but it is the easement to make any use of the land for railroad purposes that the public necessity and convenience may from time to time require.” 3 Nichols on Eminent Domain Section 11.11 (3d ed. 1985). So long as the use to which the right-of-way is put comes within these rules, the owner of the servient estate has no cause to complain. Sparrow, 232 N. C. 589, 61 S. E (2d) 700. But, while a “railroad company may deal with the right-of-way so acquired as its own in the conduct of its business as a carrier, it cannot dispose of it or use it so as to destroy or impair its ability to serve the public. ’’Matthews v. Seaboard Air Line Ry., 67 S. C. 499, 505, 46 S. E. 335, 336 (1903) (emphasis added).

In the case of Cayce Land Co. v. Guignard, 135 S. C. 446, 134 S. E. 1 (1926) one of the issues was whether Southern Railway Company exceeded its authority in its right-of-way by permitting a spur track of Seaboard Railway Company to pass under Southern’s track. The Seaboard spur track did not connect with Southern. The court held as follows:

There appears to be no connection at the underpass or elsewhere between the Seaboard spur track and the Southern railway. The Seaboard spur track was, therefore, constructed solely for its benefit and under its authority for its railroad purposes. The Southern had no more authority to permit the use of its right-of-way for the benefit solely of the Seaboard than it had for the benefit solely of an independent industry which brought no revenue to it.

Cayce Land Co., 135 S. C. at 550, 134 S. E. at 34.

A principle emanating from the cases is that a railroad company may only acquire property under authority of a statute or its charter and for purposes stated in its charter. 65 Am. Jur. 2d Railroads Section 47 (1972). A railroad company takes property for public use on condition that it be used only for the purposes set forth in its charter. Greenville & Columbia R.R. Co. v. Partlow, 40 S. C. L. 286, 287 (1853) (“By the Act chartering this company ... the company is authorized to take any land, that may be required by it in the execution of the purposes for which it was chartered”).

We have been unable to locate a South Carolina case with similar facts. Additionally, many of the cases cited by the parties dealing with the question of whether public roads may be constructed within railroad rights-of-way are limited in applicability because the easements, unlike the one in question, continue to be physically used for the operation of the railroad tracks. Thus the real question in those cases is whether the construction of the roads amounted to an additional servitude for which compensation must be paid to the owner of the fee.

The question of whether a railroad has abandoned its right-of-way is ordinarily a question of fact. Lorick & Lowrance, Inc. v. Southern Ry. Co., 87 S. C. 71, 68 S. E. 931 (1910). In Lorick &. Lowrance the court said that in order to destroy the rights of the railroad to a right-of-way under a statute similar to the one in this case “there must be shown either a use separate and distinct from railroad purposes or nonuse for railroad purposes under such circumstances as to indicate an intention to abandon the right-of-way,” Id. at 74, 68 S. E. at 931. The doctrine of abandonment as it relates to railroads is stated in the case of Raleigh, C. & S. Ry. Co. v. McGuire, 171 N. C. 277, 280, 88 S. E. 337, 339 (1916):

It includes both the intention to abandon and the external act by which such intention is carried into effect. There must be a concurrence of the intention with the actual relinquishment of the property. It is well settled that to constitute an abandonment or renunciation of a claim to property there must be acts and conduct, positive, unequivocal and inconsistent with the claims of title.

In Raleigh the Supreme Court of North Carolina found no abandonment where the railroad company relocated its main tracks to another location, but continued to use the disputed right-of-way for a spur track. However, evidence of a railroad’s intention to abandon a right-of-way “has often been found in the deliberate removal of tracks or other facilities from the land whereby the running of trains is rendered impossible.” 65 Am. Jur. (2d) Railroads Section 83 at 392 (1972): See Boyd v. Pierce, 278 Ark. 161, 644 S. W. (2d) 927 (1983) (removal of railway station and tracks); People ex rel. Carson v. Mateyka, 57 Ill. App. (3d) 991, 15 Ill. Dec. 125, 373 N. E. (2d) 471 (1978) (removal of tracks and signal wire); L. & G. Realty and Constr. Co. v. City of Indianapolis, 127 Ind. App. 315, 139 N. E. (2d) 580 (1957) (adandonment of electric interurban services). Additionally, an intent to abandon has been found in a railroad conveying its right-of-way to another for purposes other than a railroad. Anno., 95 A.L.R. (2d) 468, 498 (1964).

Clearly, the purpose of the grant of the right-of-way was to permit the construction and operation of a railroad as railroads were commonly known in 1845. It is clear from a reading of the 1845 Act² and older cases that the General Assembly knew the difference between a railroad and a common highway in 1845. See L.C. & C.R.R. Company v. Chappell, 24 S.C.L. 383 (1838) (the court compared the right of the legislature to franchise a private corporation to acquire private property to construct and operate a railroad to the right it had been granting for years to private corporations to acquire property to operate public highways). We are not unaware of language in that opinion which appears to equate railroads to highways. However, as we read Chappell, the court equated a railroad to a common public highway only to demonstrate that both were conduits for the transportation of people and freight and therefore they both served the public interest. Thus a statute authorizing the establishment of the railroad and granting it the right of eminent domain was not constitutionally infirm on the ground the statute authorized the taking of private property for private use. We read the case to say a railroad company may open and operate public highways in furtherance of its corporate charter only to the extent necessary to facilitate the use, maintenance, and operation of its railroad business.

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. S.C.R. Civ. P. 56(c). Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Bowen v. U. S. Capital Corp., 295 S. C. 201, 367 S. E. (2d) 474 (Ct. App. 1988); Smith v. S. C. Dept. of Highways and Public Transp., 296 S. C. 11, 370 S. E. (2d) 101 (Ct. App. 1988).

The record does not reveal how the operation of public roads (even on those portions of the right-of-way that contain roads) by the respondents within the disputed right-of-way is incident to the construction, maintenance, and operation of Southern Railway’s railroad. We, therefore, hold the trial judge erred in holding as a matter of law that Southern Railway in removing its tracks and purporting to deed the right-of-way to the City of Greenwood and Greenwood County did not abandon the right-of-way.

Even if we were to hold as a matter of law that the use of the right-of-way for public highway purposes satisfies the condition of the grant requiring the easement to be used only for railroad purposes, we nevertheless find summary judgment inappropriate. The record raises factual questions of how the disputed right-of-way has been developed or utilized over the years. Portions of the area seem to have been utilized for highway purposes while other portions appear not to be presently used for public highways. Additionally, factual questions exist concerning what portions of the property were acquired by fee simple title and what portions were acquired by easement.

While summary judgment is a viable pretrial device for resolution of many cases, it does not appear to be a viable alternative for resolution of this case. A case with as much undeveloped factual detail as indicated by this record merits further consideration of the issues on a more complete record.

II.

Section 24 of Act No. 2953 reserved unto the Legislature the right to “make further grants of ferries, bridges, and turnpike roads, within any distance of the [railroad], whenever the convenience of the community may require such further grants.” The trial court reasoned this section “provided for roads, streets and highways within any distance of the railroad.” It therefore held this section allowed the use of the vacated railroad right-of-way for highway purposes and such use did not trigger a rever-sionary interest or constitute an abandonment of the subject easement by the railroad company.

The appellants argue there have been no further grants by the Legislature of the right to construct highways within the railroad company’s right-of-way. Thus, they assert the section is inapplicable to this suit. On the other hand, the respondents argue the Legislature has effectively made such grants by generally delegating to the South Carolina Department of Highways and Public Transportation (Department) the right to acquire land for highway purposes. They further argue that pursuant to that delegation, the Department has “entered into contracts and agreements with the Railroad and the City and County and Federal governments to exercise and implement that power through the elimination of rail-highway grade crossings and the construction of widening projects in and near the vicinity of Greenwood, South Carolina.” The Department then cites numerous statutes granting to the Department the right to do certain acts. None of these statutes vest any title to the right-of-way in the Department, nor do they bestow upon the Department the right to possess or occupy the right-of-way.

We view Section 24 of Act No. 2953 as further restricting the railroad company’s use of the right-of-way granted to it. Simply stated Section 24 provides that while the General Assembly has granted to the railroad company the right to construct a railroad track and operate a railroad over the subject property, the Legislature reserved the authority to grant to others the right to construct and operate ferries, bridges, and turnpike roads within the right-of-way granted to the railroad company. Thus, because the railroad company has a “mere easement in the land, [its] right of possession is not exclusive, except so far as the land covered by the right of way is actually needed for the purpose of constructing, operating or maintaining the railroad.” Southern Ry. v. Beaudrot, 63 S. C. at 269, 41 S. E. 299.

Because there has been no legislative grant to the municipalities or the Department of a right-of-way for any purpose the trial court erred in construing Section 24 to grant to the appellants the right to use the easement property for highway purposes irrespective of whether or not the disputed property is also being used for railroad purposes.

We reverse and remand this case for further factual development on the merits. We note the respondents raised various other defenses in their pleadings which were not addressed on summary judgment. We express no opinion on those matters.

Reversed and remanded.

Goolsby, J., concurs in separate opinion, and Gardner, J., dissents in separate opinion.

1 No one disputes the railroad company acquired an easement under the Section XI provision. See Southern Ry. v. Beaudrot, 63 S. C. 266, 41 S.E. 299 (1902); Ragsdale v. Southern Ry., 60 S. C. 381, 38 S. E. 609 (1901). There is serious doubt in our mind, however, whether Southern Railway could convey its easement since the section uses only the word “successor” and fails to use the word “assigns” in its granting provisions. See Matthews v. Seaboard Air Line Ry., 67 S. C. 499, 46 S. E. 335 (1903) (railroad cannot grant its right-of-way so as to defeat the purpose for which it was acquired); Schmoele v. Atlantic City R. Co., 110 N. J. Eq. 597, 160 A. 524 (1932) (term successor as applies to railroad corporations ordinarily means corporate successor, and not independent corporation buying property); 65 Am. Jur. (2d) Railroads Section 48 (1972) (a railroad acquiring only an easement in land for a right-of-way cannot sell such right-of-way apart from its franchise.) This issue is not before us.

2 The Act refers to turnpike (toll) roads and provides for additional grants to construct roads within the railroad’s right-of-way.