October 10, 1921. The opinion of the Court was delivered by

MR. JUSTICE COTHRAN.

Action for the recovery of certain real estate, described in the complaint, containing 13 acres, more or less, tried before Judge Mauldin and a jury, upon certain issues submitted involving title and right to possession. The verdict was in favor of the plaintiff, and the defendants have appealed.

While the complaint seeks the recovery of the entire tract of 13 acres, as a matter of fact the contest is limited to a narrow strip containing between 2 and 3 acres, upon which is located a storehouse, a dwelling house, and other buildings; the remainder of the tract being in the possession of the plaintiff, whose title thereto is not contested. We quote from the appellant's argument:

"The land in dispute is the small area of about two acres, on which are located the store building, dwelling, and barn."

A large body of land, of which the 13-acre tract was a part, belonged to Jane I. Cornwell, who was the widow of Elijah Cornwell and the stepmother of his two sons, Eli Cornwell and Dr. W.J.W. Cornwell. The plaintiff claims that on February 15, 1878, Jane I. Cornwell conveyed the 13-acre tract to her stepson, Dr. Cornwell; that Dr. Cornwell died in July, 1910, intestate, leaving as his sole heir at law his daughter, Mary C. Holler; that on January 7, 1916, Mary C. Holler conveyed to him 63 acres of land, consisting of 50 acres which Dr. Cornwell had previously owned and as to which there is no dispute and the 13-acre tract. The two tracts adjoin each other; the 50-acre tract lying south of the other.

The defendants claim under the will of Jane I. Cornwell, dated February 10, 1870, taking effect at her death in February, 1878, a few days after the execution of the deed to Dr. Cornwell above referred to. By the will she devised her entire estate to her stepson, Eli Cornwell, in trust for the use and benefit of himself and his wife, Mary C. Cornwell, during their joint lives and to the survivor for life, and after the death of both to be equally divided between the children of Mary C. Cornwell then living and the children of such as may have predeceased her. Eli Cornwell is dead; Mary C. Cornwell, his widow, is living; she is a defendant in this action, along with the other defendants above named, her children.

The controversy over the disputed area will be better understood by reference to the following rough draft of the situation:

(1) A B C D — Disputed area.

(2) A E H D — Location of 13 acres as claimed by plaintiff.

B E F G — Location of 13 acres as claimed by defendants.

(3) — 50-acre tract owned by Dr. Cornwell.

(4) — Barbara Corder land.

(5) — Other lands of estate of Jane I. Cornwell.

(6) — Columbia Highway.

(7) — C., C. A.R.R.

(8) — McLarnon line.

(9) — Hardin line.

(10) — Original dividing line between Dr. Cornwell and Jane I. Cornwell.

There is no dispute as to the location of the southern line (10) between the 13-acre tract and the 50-acre tract (3) owned by Dr. Cornwell, nor as to the location of the western line between the 13-acre tract and the Barbara Corder land (4); the controversy is as to the location of the northern line between the 13-acre tract and the other land owned by Jane I. Cornwell(5), of which the 13-acre tract was a part; the plaintiff contends that the true line is that run by the surveyor McLarnon, indicated as (8) on the draft, which would give him the boundaries A E H D, inclosing the disputed area A B C D; the defendants contend that the true line is that run by the surveyor Hardin, indicated as (9) on the draft, which would give the plaintiff the boundaries B E F G, excluding the disputed area A B C D, and giving it to them under the will of Jane I. Cornwell.

The description of the 13-acre tract contained in the deed from Jane I. Cornwell to Dr. Cornwell, dated February 15, 1878, is the source of the uncertainty and the basis of the controversy. It is as follows:

"All that piece, parcel or tract of land on the west side of the C., C. A.R.R., containing 13-acres, bounded on the north by lands of Jane I. Cornwell, on the east by C., C. A.R.R., on the south by Dr. W.J.W. Cornwell, on the west by Barbara Corder land."

The locus of irritation is the descriptive line "on the east by C., C. A.R.R." Does that mean that the eastern boundary line of the 13-acre tract is the center of the railroad tract, or the western line of the strip constituting the railroad right of way? The right of way of the railroad at this point is 65 feet on each side of the center of the track, which, on the western side, reaches to about the western edge of the Columbia highway.

It is apparent that, the southern line (10) of the 13-acre tract being fixed, the western line separating it from the Barbara Corder land (4) being also fixed, and the deed calling for 13-acres, the alternative correctness of the McLarnon line or the Hardin line depends upon the proper location of the eastern line as being the edge of the right of way or the center of the railroad track. The survey of Hardin extended the disputed dividing line (9) across the Columbia Highway (6) to the center of the railroad track (7), inclosing an area of 13 acres; the survey of McLarnon extended the disputed dividing line (8) only to the Columbia Highway (6), also inclosing an area of 13 acres. The question, therefore, whether or not the disputed area is included within the description contained in the deed from Jane I. Cornwell, to Dr. Cornwell, depends upon the basis upon which the dividing line should have been run. Should it have had its terminus at the western edge of the right of way or at the center of the railroad track? It is apparent that the further east the dividing line should be extended the further south will be its location.

This question turns in a measure upon a proper construction of the charter rights of the railway company under Section 20, Act of 1848 11 Stat. 539), which will be reported. Did the railway company secure a fee-simple defeasible title to the strip of land or did it secure simply an easement? If the former, the terminus of the northern dividing line should be at the western edge of the right of way strip; if the latter, under the cases of Wright v. Willoughby, 79 S.C. 438, S.E. 971, and Foster v. Foster, 81 S.C. 307, 62 S.E. 320, the terminus should be at the center of the railroad track. In the first event the McLarnon line is the true dividing line; in the second the Hardin line, unless as declared in the case of Wheeler v. Wheeler, 111 S.C. 87, 94, 96 S.E. 714, it may be shown that the parties intended the edge of the right of way strip and not the center of the track.

The appellants contend that under the section of the railroad company's charter above referred to the company did not and could not acquire more than the easement of right of way, and that the Circuit Judge erred in holding that they acquired the fee to the strip of land. The respondent in his argument says:

"The presiding Judge charged, as requested by the defendant, that the grantor actually owned to the center of the railroad track, subject to the easement of the railroad and the highway, and he further instructed them that the title to this land passed under the deed. The Judge also specifically charged that the railroad could not acquire a fee in this land.

"The jury, after being so charged, found for the plaintiff, and the defendant cannot complain of the charge of the Judge, which was on this point exactly as he requested."

We do not so construe the charge. The charge contained a distinct and unequivocal declaration that the railroad company, in the absence of a contract with the owner, is presumed to have received a grant from the owner for the strip of land, and to have "good right and title thereto * * * as long as the same be used for the purposes of said railroad." He nowhere charged, as we can find, that the title to this strip passed under the deed, or that the railroad could not acquire the fee to the strip of land. His ruling that a grant was presumed, that the railroad company acquired good title thereto, defeasible upon abandonment, is entirely inconsistent with such a statement. The defendants were entitled to have their first requested charged, which was as follows:

"Where a deed to land calls for a road as a boundary, such as a public highway or a railroad right of way, such conveyance of land includes the soil to the center of the way, provided the grantor owned to the center when the deed was executed, and provided there are no words of specific description to show contrary intent."

The appellants in their requests to charge embodying their contention, which were not given, and in their exceptions, squarely raise the issue.

This Court, in construing a similar provision in 2, 3 the charter of another railroad company, has distinctly held that the company thereby acquired, not the fee, but an easement of right of way, of the stated dimensions. Ragsdale v. Ry. Co., 60 S.C. 381, 389; 38 S.E. 609, which was reaffirmed in Railway v. Beaudrot, 63 S.C. 266, 268, 41 S.E. 299); and in the following cases the proposition seems to have been accepted without a suggestion of controversy; Hill v. Ry. Co., 67 S.C. 548, 46 S.E. 486; Harmon v. Railway Co., 72 S.C. 228, 51 S.E. 689; So. Ry. Co. v. Howell, 79 S.C. 281, 60 S.E. 677; So. Ry. Co. v. Gossett, 79 S.C. 372, 60 S.E. 956; Lorick v. Ry. Co., 87 S.C. 71, 68 S.E. 931; A. C. Ry. Co. v. Electric Co., 99 S.C. 299, 83 S.E. 635.

The Circuit Judge was therefore in error in holding that the railroad company had the fee-simple title to the strip claimed by it as a right of way. While he did charge the jury:

"The jury must decide from the evidence what are the bounds to the land called for by the deed. All the circumstances and facts in evidence must be considered by the jury in deciding the boundaries called for by the deed of Mrs. Jane I. Cornwell put in evidence" — a charge which, as we have seen, would have been entirely appropriate, under Wheeler v. Wheeler, 111 S.C. 87, 96 S.E. 714, to the theory of an easement and not a fee, it could not cure the error in holding that a fee had been acquired; for, if that be so, the dividing line would necessarily have its eastern terminus at the western line of the strip. The conclusion that the presumptive grant to the railroad company was of an easement and not of the fee raises a rebuttable presumption that the eastern line of the 13-acre tract was the center of the railroad track, but as the Court declares in Wheeler v. Wheeler, 111 S.C. 87, 96 S.E. 714:

"That construction is in conformity with the general rule that where a stream is given as a boundary the grant is presumed to extend to the middle of the stream. But, as clearly appears from the decision in that case, the rule is not invariable or inflexible. It may be shown that the parties intended the edge of the swamp rather than the stream as the boundary, and, of course, when that is made to appear by competent evidence, effect will be given to their intention. It may be conceded that parol testimony of a contrary intention is incompetent to vary or control the construction. But, as pointed out in Felder v. Bonnett, it may be done by other competent evidence appearing either upon the face of the deed itself, or of the plat made at the time, and proof of the actual location of a different boundary line on the ground, and possession taken and held to the boundary so located. Especially is this so where the boundary given in the deed is ambiguous or of doubtful meaning, as it clearly is in this case; for Pudding Swamp as a boundary may be either the edge of the swamp or the run of the stream."

This is a law case, and the questions of adverse possession by Dr. Cornwell, the location of the dividing line by co-operation with the trustees, permanent improvements, estoppel, and perhaps others, are questions for the jury and such as this Court is powerless to determine.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.