The Manning times. [volume] (Manning, Clarendon County, S.C.) 1884-current, 1915-01-06

in evidence, a jury being waived by al
parties to the action.
''It appears that a demurrer to the
complaint was first interposed by the
defendant on the ground that said com.
plant failed to state cause of action,
but said demurrer was oVerruled in a
recent decision of the supreme court oi
the State.
st appears that in the year 1904 E.
NJ. Briggs and r. R: Briggs. trustees,
conveyed to the plaintiff herein lot OF
land in the town OF Summerton, county
and State aforesaid, and warranted the
title to same; that in the year 1908 the
Northwestern Railroad company OF
South Carolina commenced an action
to recover portion of said lot extend
ing 100 feet from the centre of its track
by virtue of deed from the said f. Nj.
Briggs and r. R. Briggs, said railroad
company having acquired said title and
having been IN full operation, several
years previous to the conveyance OF
said lot to the plaintiff herein as afore-
said; that at the time OF the commence.
ment of the action by the said railroad
company against the plaiptiff the said
plaintiff vouched the said r. r. Briggs,
trustee, and required him to come in
and defend said action, which the said
r. r. Briggs, trustee, refused to do,
whereupon plaintiff employed attorneys
and defended the action, which termi.
mated in decree OF the supreme court,
as reported in Colclough VS.. North
western Railroad company, SO S. G.
555.
"The action herein by the plaint tiff is
for damages on account of a breach OF
warranty and expenses incurred by
reason of defending the suit referred TO
in SO S. G. 555, SUPRA -
Turning to the case OF Railroad com.
pany VS.. Colclough, SO S. C. 555, we
find the following statement of facts:
"Briefly it may be stated that the ev.
idence established a grant, about the
year 1888, made upon valuable corsid-
GRAFTON by the life tenant, of the strip
of land here in question, to the grantor
of the plaintiff for railroad purposes.
and an occupation thereof by the plain
tiff railroad company, for its use as a
right of way for some period OF time.
the length of which is not clearly stat
ed, prior to the taking possession OF a
part thereof by the defendent, in the
year 1904. Notwithstanding the grant
by the life tenant was duly recorded in
the year 1889, the life tenant and her
husband. the latter being then trustee
for the remaindermen, and being in
vested with power of sale under the
trust deed, undertook to convey to the
defendant in the year 1904 certain lands
the track and right of way of
the plaintiff, the description thereof
calling for measurement in feet,
whick include the right OF way in part,
although the deed calls for the right Of
way as a boundary. At some date sub
to the deed OF 1904 the life ten
ant being deap, the defendant erected
certain buildings and fences, either
wholly or partly within the limits OF
the grant of the right OF way aforesaid.
, f'The finding of the circuit court as
matter of fact is that right of way
was laid out and appropriated to rail-
road uses, 100 feet 10 width on each
side OF the track Of the plaintiff rail
road company, in pursuance of the grant
of the life tenant and subsequently, it is
further found that the plaintiff was in
the possession and use of such right of
way, actually as to part and construc-
lively as to the remainder at the time
or the entry and possession taken by
the defendant.
SIT appears, however: that by the
terms of its character, the railroad
was only authorized to con-
demn for the purpose Of it's right of
way strip OF land extending on each
side of the centre of its roadbed, dis
tance eff IS feet. While, therefore, it
had the right, no doubt, to accept
grant for a greater width, it's power of
condemnation under it's charter, only
to distance of Is feet from