Waring v. Cheraw & Darlington Railroad

The opinion of the court was delivered by Kershaw, A. A. J.

By their charter, the defendant company was vested with all the powers conferred by charter on the 'Wilmington and Manchester Railroad Company. By the sixteenth section of that charter, provision is made for compensation to the owners of land which should be required for a right of way, where, for the want of agreement as to value, or from any other cause, it could not be purchased from the owner. In such case the land could be “taken at a valuation to be made by five commissioners, or a majority of them, to be appointed by any court of record,” Ac. The fifteenth section of the act gave the company power to enter upon and lay out any lands required for the purposes of said road. The seventeenth section is in the following words: “In the absence of any contract or contracts with the said company, in relation to land through which the said railroad may pass, signed by the owner thereof, or by his agent, or any claimant or person in possession thereof, which may be confirmed by the owner thereof, it shall be presumed that the land upon which the road may be constructed, together with a *422 space of sixty-five feet on each side of the center of said road, has been' granted to the company by the owner or owners thereof; and the said company shall have good right and title thereto, and shall have, hold and enjoy the same as long as the same may be used only for the purposes of the said road, and no longer, unless the parson or persons owning the said land at the time that the part of the said road which may be on the said land was finished, or those claiming under him, her or them, shall apply for an assessment of the value of the said lands, as hereinafter directed, within ten years next after the said part was finished; and in case the said owner or owners, or those claiming under him, her or them, shall not apply for such assessment within ten years next after the said road is finished, he, she or they shall be forever barred from recovering the said land, or having any assessment or compensation therefor. Provided that nothing herein contained shall affect the rights of femes covert or infants until two years after the removal of their respective disabilities.”

It was said by the learned judge who delivered the opinion of the Law Court of Appeals in Lewis v. The Railroad Company, 11 Rich. 93 , construing this act, that “the general scheme adopted to secure to the company the right of way and compensation to the landholder is manifest. For the want of agreement as to the value of the land taken, or where it cannot be purchased, the sixteenth section directs a valuation by commissioners. But in the absence of any contract, or of any valuation by commissioners, within ten years from the completion of that part, of the road, the seventeenth section authorizes the company to hold the land as long as it shall be used for the purposes of the road, and presumes a grant from the owner for that purpose; and should no application for an assessment- be made within ten years, then the owner is forever barred from recovering the land or having any assessment or compensation.”

Instruction may also be derived, as to the construction of this act, from the dissenting opinion of that eminent jurist, Judge Wardlaw, in the same case. Speaking of a vendee of the land which was taken for the purposes of the road, he said: “If he should permit the railroad company to hold, without complaint, *423 until tlie expiration of ten years from tlie time tlie road was there finished, the land would become subject to the company’s right to enjoy the slip occupied by them so long as they continued to use it for their road, and no longer; but if compensa,tion should be claimed and paid, the fee-simple absolute would thereby be vested in the company.”

In the case under consideration, there was no contract in relation to the land. Tlie company entered upon it and constructed their railway in 1854, and there was no assessment of value by commissioners within ten years next thereafter, nor any application for such assessment on the part of tlie owner within that period. The land, therefore, became “subject to the company’s right to enjoy the slip occupied by them so long as they continued to use it for their road,” unless there be something in the case to bring it under the operation of the proviso in favor of infants and femes covert, in which case two years after the removal of the disability would be required to perfect the rights of the company and conclude the owner. Upon that point we agree with the Circuit judge that “the legal estate was in a trustee, under no disability for more than ten years.” We do not understand that either party denies that Mrs. Mary A. McClenaghan was trustee under the will, nor that the legal estate remained in her, either as sole trustee, or in conjunction with her husband, George McClenaghan, from 1850, when she qualified (with her husband) as executrix, until the death of Francis Irene Quirk (the cestui que trust for life), who died in January, 1880.

The legal estate was devised to Mary A. McClenaghan and her heirs, and she was seized of an estate in fee subject to the trusts ' declared in the will. This estate became vested in her husband, as would any such estate in relation to which there was no trust. The principle is thus conveniently stated by Mr. Hill in his treatise on trustees, page *304: “Upon the marriage of a female trustee, the legal interest in the trust property will become vested in the husband, either wholly or partially, according to the nature of the estate. * If it consist of chattels personal in possession, they will devolve upon him absolutely by the fact of marriage, unless it be otherwise expressly provided; and if it *424 consist of chattels real, the husband’s interest in them will be subject to the title to the wife by survivorship!. Where the trust property is real estate, of inheritance, the husband will take either an estate by the curtesy if he have had heritable issue, or, otherwise, a bare estate during the life of his wife, jointly with her. * * * As the husband will be liable personally for any breach of trust committed by his wife, it must follow as a necessary consequence that she cannot act in the administration of the trust without his concurrence or consent.”

The life-tenant of the use was a feme covert, and it was settled to her sole and separate use, and the remainders were contingent. Faber v. Police, 10 S. C. 385; Ex parte Gadsden, 3 Rich. 467 ; Bacot v. Heyward, 5 S. C. 445. Certainly, during the life-time of the tenant for life, the fee was in the trustee. No one else could have received the compensation required by the act to be ptaid to the owner of the land. McClenaghan and his wife could have made application for the compensation, and no one else could, and there was no disability except that of the coverture of Mr,^. McClenaghan. It would have been necessary for her to join her husband in an application for the compensation, while he was yet alive, because, as has been shown, he was seized jointly with his wife of the legal estate; and as the fund to be received appertained to the inheritance, and, the action would have survived to her, such joinder was necessary. She was, therefore, entitled to the benefit of the proviso which allowed her two years after the death of her husband within which to appdy for compensation. These two years expired in 1871, and, though there was some negotiation in this interval in regard to the matter, it was suffered to drop. No such application was made as was required for the legal assertion of the right, and the bar of the statute was not affected thereby.

If the trustee was barred, the cestuis que trust are also barred, (Long v. Cason, 4 Rich. Eq. 69 ,) because the statute runs against the legal estate, which is vested in the trustee. Says Lord Chancellor Talbot: “Though the cestui que trust be an infant, yet he must be barred by the trustees nob «suing in time, for I cannot take away the benefit of the Statute of Limitations from the company, who are in default, and are entitled to take advan *425 tage thereof as well as private persons, since their witnesses may die or their vouchers be lost. And as to the trust, that is only between the administrator and the infant, and does not affect the company. So, where there is an executor in trust for another, and the executor neglects to bring his action within the time' prescribed by the statute, the cestui que trust or .residuary legatee will be barred.” Wych v. East India Company, 3 P.Wms. 310.

Eegarding, as we do, this action as involving only the right •of the plaintiffs to recover against the defendant company the •compensation to which they suppose themselves entitled under the act, the judgment of this court is that the claim was barred before their interests in the land'vested, and that they cannot, for that reason, maintain their action.

We have said nothing in regard to the point contended for by plaintiffs’ counsel: that the limitation of the charter is so defective in its provisions as to render it inoperative. In this seventeenth section of the charter the owner is required to make application for an assessment of its value “as hereinafter directed,” and no directions follow. It is said that the owner cannot comply with this impossible condition, and, hence, cannot, be barred by the omission to do so. Ample directions are given in a previous section, and the meaning of the act is so plain that wre feel it incumbent on us to disregard this manifest error. The whole scheme of the act cannot be permitted to bo destroyed by a blunder so evidently unintentional. -The very word which here is supposed to destroy the efficacy of the statute was disregarded .in the construction of a deed in Creighton v. Pringle, 3 S. C. 94. Dor the reasons given there, we are constrained to arrive at a like conclusion in this case. The same principle applies to a statute under construction, in this respect, as to a deed or will. The evident intention will control the use of an inappropriate and senseless word. Pott. Dwar. Stat. 175, 207, et seq. Construed with reference to the other sections of the act, none can doubt that the word which was intended to be used by the legislature was “hereinbefore” instead of “hereinafter,” and this construction is necessary to sustain the legislation.

One other point remains to be considered — -the motion for a new trial. Upon this subject, without entering into the question *426 made as to the merits of the motion, or the power of this court to entertain the same, we think the newly-discovered evidence alleged is not such as could avail the plaintiffs. . It tends to show that an application was made by Mr. and Mrs. McClenaghan, as trustees, for the appointment of commissioners to assess the damages, now claimed by the plaintiffs, in 1859. That commissioners were appointed by the court, but never met, and no further steps were taken in the matter. There has been no continuance of the proceedings, and the steps taken would not take the case out of the operation of the limitation as to time unless there had been a regular continuance of the proceeding. In order to avoid the operation of the Statute of Limitations by a plea that the action was commenced within the statutory period,, the plaintiff must show a continuance of that action up to the time of trial. McDowell v. Goodwyn, 2 Mill. Const. R. 441; Chapman v. Mayrant, 2 Spears 484 .

For some reason the parties did not see fit to proceed in their attempted assessment, and it is but reasonable to suppose that they supposed themselves to have had good reason for not doing so. As an account was required by the act to be taken of the benefit and advantage which had accrued to the owners of the land from the erection of the railroad, as well as the loss and damage resulting therefrom, and only the excess of loss over the benefits could be recovered, it is quite probable that the trustees considered that the pursuit of the matter would be fruitless. At all events they did not proceed, and the statutory period, to which they were limited, expired, and they lost the remedy.

The decree of the Circuit Court must be set aside and the complaint dismissed, and it is so adjudged.

Simpson, C. J., and McGowan, A. J., concurred.