convicted contained provisions that render them unconstitutional will be determined when that question properly arises.

Appeal dismissed.

Mr. JUSTICE COTHRAN: I concur in this judgment. The second section of the Eighteenth amendment evidently was adopted with this idea and purpose in view: It had been decided by the Supreme Court of the United States, particularly in cases involving interstate commerce transactions and liabilities connected therewith, that when Congress took over a certain field of operations. its jurisdiction was not only paramount but exclusive. It was accordingly apprehended that the effect of the prohibition amendment and congressional legislation appropriate thereto would have been the same upon prohibition legislation by the State, in the absence of a provision limiting the application of that principle. The purpose of the section therefore was, and in my opinion the effect is, to leave to the several States the legislative power to enact or enforce any law, not in conflict with section 1 of the amendment, intended and calculated to enforce the prohibition declared in this section. This would apply to enactments of this character in force at the time of the adoption of the amendment, as well as to those subsequently adopted by the several States. Jones v. Hicks (Ga.) 104 S. E. 771; State v. Fore (N. C.) 105 S. E. 334; Ex parte Ramsey (D. C.) 265 Fed. 953. If the amendment had not been adopted, Congress could not have acted at all, for the subject-matter was exclusively within the police power of the States; with the amendment unlimited, Congress alone could have acted; with the amendment limited as it is, both Congress and the several States may act in legislating for the purpose of enforcing the prohibition declared.

As the Chief Justice shows, there is no question in this case as to a conflict between the State statutes and the

October Term, 1920.

amendment, nor, I may add, between them and congressional legislation. Should there appear in a State statute a conflict between it and the amendment, the statute would, of course, have to give way; should it appear between it and congressional legislation, the interesting question of the grant of "concurrent power" to Congress and the several States, by the amendment, so learnedly and entertainingly discussed by Justice McKenna, dissenting, in State v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946, will arise, the effect of which need not now be anticipated.

10597.

THE STATE v. DIX ET AL.

THE STATE v. BOYNTON

THE STATE v. GRAY

(106 S. E. 767)

Before W. C. COTHRAN, Special Judge, Allendale, special June term, 1920, and RICE, J., Allendale, June term, 1920. Three cases tried together. Appeal dismissed.

Indictment against Cattie Dix, Lillie Stoney and Jim Harley, Capers Boynton and Ossie Gray for violation of the prohibition law. From overruling of demurrers to the indictments, and the refusal to quash the indictments, the defendants appeal.

Mr. Jas. M. Patterson, for appellants, cites: The Act of 1917 (30 Stats. 69, 169) was repealed by the enactment of the Eighteenth Amendment (253 U. S. 350, 64 L. Ed. 946, 40 Sup. Ct. 486.) And the clause in that amendment permitting the States to pass "appropriate legislation" to enforce it does not include the Act of 1917. The Federal Constitution is a direct grant and the Eighteenth Amendment must be construed to be prospective: 8 Cyc. 731; 11

34--S. C. 115.

S. C. 71. Act of Congress cannot validate an unconstitutional statute: 94 S. C. 444. Concession of power to States is futile: 253 U. S. 350.

Robert L. Gunter, Solicitor, for respondent. Oral argu

ment.

April 1, 1921.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

For the reasons stated in the case of the State v. Bill Hartley, 115 S. C. 523, 106 S. E. 766, in which the opinion' has just been filed, the appeal in each of said cases is dismissed.

10598.

BOYLESTON v. SEABOARD AIR LINE RY. CO. ET AL.

(106 S. E. 777)

1. APPEAL AND ERROR-EXCEPTIONS SHOULD NOT CONTAIN TWO QUESTIONS. An exception should not contain two questions.

2. APPEAL AND ERROR.-VERDICT SUPPORTED BY EVIDENCE NOT DISTURBED. —A verdict of a jury finding that an easement had been lost by nonuser which is supported by evidence will not be disturbed.

3. RAILROADS.-EASEMENT LOST WILL NOT BE PROTECTED BY INJUNCTION. -Where a railroad company by nonuser had lost its easement of right of way, it has no rights to be protected and enforced by the equitable remedy of injunction.

Before RICE, J., Orangeburg, October term, 1919. Affirmed.

Action by W C. Boyleston against Seaboard Air Line Railway Co. and Joseph W. Cooper, its section foreman, for trespass in laying a side track. After verdict of a jury on issues submitted and decree thereon, the defendants appeal.

Messrs. Moss & Lide, and Lyles & Lyles, for appellants, cite: No abandonment by Railway of its right of way: 109 S. C. 444; 80 Va. 211; 17 S. E. 868 and 39 S. E. 701, and 90 Va. 211.

In reply. Case docketed on Cal. 1 under Sec. 310, Code Proc. No issues framed under Sec. 312, Ibid, but was special verdict under Sec. 321, Ibid; and without binding effect of verdict on issues submitted under Sec. 312, 76 S. C. 509. Cases cited by respondent (82 S. C. 199; 106 S. C. 328) came under Constitution and Sec. 312 supra.

Messrs. T. M. Raysor and W. C. Wolfe, for respondent, cite: Law case and jury trial proper unless expressly waived: Code Proc. Sec. 312. Whether an easement has been abandoned is a question of fact and intention, triable by jury: 89 S. C. 391; 61 S. C. 45. Facts not reviewable by this Court: Sec. 4, Art. V., Const. 1895. In equity case findings of fact by jury not reviewable: 82 S. C. 199; 106 S. C. 328. Nor in cases where issues referred by consent: 93 S. C. 357.

April 11, 1921.

The opinion of the Court was delivered by MR. Justice FRASER.

Levi A. Gleaton owned a tract of land near the present town of North, in Orangeburg county. He conveyed a strip of land to South Bound Railroad 50 feet wide (25 feet on either side of the center of its track) across his land. In addition thereto his deed contained the following:

"And for value received I also grant, bargain, sell and convey to the South Bound Ralroad Company, its successors and assigns, one-half (1⁄2) acre of my said lands, that the company may select for a depot, also an additional strip or piece of land 75 feet wide on either side of the abovenamed right of way, and running the full length of said

right of way, for the purpose of building side tracks and depot yards on the same. If the above-mentioned onehalf acre and the additional 75-foot strips are not used for the purposes mentioned, they do not vest in the said railroad company.'

This deed was executed in 1891. Through successive conveyances 16 acres of the land of Levi A. Gleaton came to the plaintiff, Boyleston, and the rights of the railroad to the Seaboard Air Line Railway Company. The record shows that the successive owners of this 16-acre tract made improvements thereon, consisting of houses, fences, etc., within the 100 feet from the center of the railroad. The railroad did not locate its station on the Gleaton land, but some distance away, how far away is not clear. About 1902 the employees of the railroad undertook to put up some telegraph poles on this land, but on complaint of the then owner of the railroad authorities the poles were removed. In February, 1918, the defendant constructed a spur track on this land then owned by plaintiff, who has since sold the land to another. This action was brought for damages for trespass and to enjoin the further use of the land. The defendant undertook to justify the taking of the land under its deed from Gleaton. The plaintiff claimed that the deed never authorized the taking, but, if it had done so, the defendant had abandoned its right, or had lost it by the adverse possession of Dr. McElveen, one of the intermediate holders.

When the case was called for trial, on motion of the defendant and over the protest of the plaintiff, the trial Judge submitted to the jury questions to be answered by them. One set of questions was as to the ownership of the land at the time the action was commenced, and the other as to the amount of damages, if any. The jury found no damages. In order to avoid any uncertainty, his Honor submitted to the jury, without objection, another question, to-wit: