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July 16, 1957


The opinion of the court was delivered by: Moss, Justice.

   July 16, 1957.
This action is brought under the provisions of Sections 10-2001-2014 of the 1952 Code of Laws of South Carolina, known as the "Uniform Declaratory Judgment Act".

Charleston and Western Carolina Railway Company, respondent, instituted the action against Mrs. Mary K. Joyce, the appellant, for the purpose of having the Court adjudge and decree the rights, status and legal relations of the parties under a contract and deed with respect to the removal of said Railway Company's tracks, and all the appurtenances thereto, including communication lines, and for an interpretation of the contract with reference to the ownership of certain crossties in the old track of respondent, which was to be abandoned when the new track was put into operation.

The complaint alleges that it owns and operates a line of railroad extending from Spartanburg, South Carolina to Augusta, Georgia, and that in January, 1955, it was engaged in a program of revision, or realignment, of its tracks between the aforesaid points and through Greenwood County, S.C. It is also alleged that the appellant was the owner of a tract of land through which the railroad tracks and right of way of the respondent extends. It is alleged that it was necessary for the respondent, in order to carry out its revision program, to purchase from the appellant a strip of land 200 feet in width, that is, 100 feet on each side of the center of the railway track as surveyed and to be constructed and extending for a distance of 3,444 feet, said strip containing 15.81 acres, more or less. It is also alleged that on January 5, 1955, the respondent obtained from the appellant an option to purchase such strip of land at an agreed price of $8,500.00, provided the respondent exercised its option to purchase within twelve months from the date thereof. This option provided, inter alia, as follows:

"In the event that the option shall be exercised, then, as a part of the consideration of the purchase price, the said Railway Company shall quitclaim to the parties of the first part all its right, title and interest in and to such portion of its present right-of-way as shall be abandoned upon the realignment of said main track being adjacent to the above described strip of land, subject, however, to the removal therefrom of all tracks and appurtenances thereto, including communication lines; except pipe culverts and old crossties which cannot be used in new track." (Emphasis added.)

The foregoing option was executed in counterparts. The above quote is from the counterpart retained by the respondent. The appellant also retained a counterpart, the only difference in the option being that the word "the" appeared only in the copy of the option retained by the appellant before the words "new track". In the option attached to the plaintiff's complaint, the word "the" before "new track" is omitted.

The complaint alleges that on September 23, 1955, the respondent exercised its option in accordance with the terms and provisions thereof by giving to the appellant notice of its election to purchase the tract of land hereinbefore referred to. It appears from the record that on October 7, 1955, the appellant, by a fee simple deed, conveyed to the respondent, upon receipt of the purchase price, the aforesaid tract of land, and the deed contained the provision set forth in respondent's counterpart of the option. Thus, the word "the", above referred to, and used as heretofore stated in the counterpart of the option retained by the appellant, was omitted from the deed. Hence, the deed was delivered by the appellant to respondent conformed to the counterpart of the option in the possession of the respondent.

The complaint sets forth the justiciable controversy between appellant and respondent. Respondent asserts that under the provisions of the option and deed heretofore referred to, that it had the right to remove all old crossties which could be used in its new track. Appellant contends that all good and usable crossties in the old track are her property and should remain on the old right of way and not be removed by the respondent because they were not taken up and placed in the newly constructed track placed on the premises of the appellant. The respondent contends that it had the right to remove all the good and usable crossties in the old track and to use such in the rebuilding of its track anywhere.

The appellant filed an answer to the complaint, and she also interposed two counterclaims. Upon motion before the Honorable J. Robert Martin, the then presiding Judge, an order was granted striking the counterclaims in the answer of the appellant. In granting such motion Judge Martin stated:

"On the hearing before me it was admitted by defendant that an interpretation of the contract between the plaintiff and defendant and a declaration of the rights, liabilities, duties, responsibilities and relations of the parties in respect to said contract was absolutely necessary. It was also admitted by defendant that to strike said counterclaims as interposed would not prejudice or deprive the defendant of her right to assert the matters and things, therein contained, hereafter as she might be advised. In view of these admissions and the nature of the action, I am of the opinion that plaintiff is entitled to an order, striking said counterclaims. Having reached this conclusion, the other grounds of the motion or further questions raised by the motion need not be passed upon or considered.

"Therefore, It Is Ordered:

"That said counterclaims as interposed by the defendant in her answer, filed herein, be, and they are hereby, stricken therefrom, without prejudice, however, to defendant to assert the matters and things therein contained hereafter as she may be advised."

This case came on for trial before Honorable Steve C. Griffith, Resident Judge of the Eighth Circuit. The respondent moved for a declaratory judgment, in accordance with the prayer of the complaint. The appellant moved to amend her answer, based upon affidavit of her counsel that he had not realized that when the counterclaims were stricken, that all factual allegations contained therein were eliminated from the answer. The proposed amendments included allegations with reference to negotiations between the parties for the option on the strip of land for the relocation of the railway tracks. The appellant sought to allege by the proposed amendments that she first proposed a purchase price of $11,000.00 for the new right of way, and later this was reduced to $9,000.00 and all crossties in the old right of way which would be abandoned upon construction of the new line. This proposal was not acceptable to the respondent. Thereafter, the arrangement made in the option of January 7, 1955 she concluded. She also asserts that on October 7, 1955 she executed a deed to the respondent, conveying the right of way in question but that the respondent had failed and refused to comply with the provisions of the deed, other than the payment of the cash consideration therein named; that the respondent knew the construction of the new track would interfere with her cattle and farming operations and that she would have to build new fences; that she had reduced her demand for the cash consideration because of her expectation to receive the crossties in the old track which were not used in the construction of the new track. In short, by the amendments, she attempted to raise these questions. Judge Griffith, in refusing to allow the proposed amendments, states that they are substantially a restatement of the alleged counterclaims which were stricken by Judge Martin. He also states that the proposed amendments are not germane to a construction of the contract between the parties, which is the only relief sought in the complaint. He also held that Judge Martin's Order, which was not appealed from, was binding upon him. He likewise referred to the provisions of the Order of Judge Martin wherein he held that the appellant admitted that an interpretation of the contract existing between the parties was necessary, and that appellant would not be prejudiced or deprived of her right to assert the matters alleged in the proposed amendments, as she might thereafter be advised.

The Court then construes the provisions in the option and deed made pursuant thereto with reference to the removal of any crossties in the old track which could not be used in the new track. He held as follows:

"In the next place, it seems perfectly clear and plain that it was the intention of the parties that the plaintiff should have the right to retain all crossties it desired to use in the rebuilding and relocation of its track anywhere. This, I think, is the only reasonable construction of the contract between the parties."

The appellant is before this Court upon thirteen Exceptions to the Order of the lower Court. By the Exceptions, five questions are raised: (1) Was it error to refuse the motion of the defendant to amend her answer? (2) Was it error to grant a declaratory judgment without taking testimony? (3) Was the Court in error in construing the contract between the parties to mean that the respondent could remove the crossties from the old road bed which could be used in new track? (4) Did the Court try the issues piecemeal? and (5) Was it error to hold that the deed of the appellant to ...

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