Southern Power Co. v. Cassels

The opinion of the Court was delivered by Mr. Justice Watts. This was an action, tried before special Judge Ernest Moore, and a jury, at the September term of Court, for Fairfield count}'-. It was for an alleged deficiency of $1,693, overpaid in the purchase of a tract of land purchased by the plaintiff-appellant from the defendant-respondent. The jury found for the defendant, a motion for a new trial was duly made and refused, and plaintiff appeals and by six exceptions challenges the correctness of his Honor’s ruling. By the first three he complains of error on the part of his Plonor in his charge to the jury, and by the fourth exception he complains of error on the part of his Honor in not charging defendant’s request as to the law of waiver, and by his fifth and sixth exceptions complains of error in not granting a new trial on the grounds set out in the motion for new trial. 1 2 The appellant contends that the defendant should have answered by way o.f counterclaim, or set up by way of new matter, the fact that the resurvey, by which the alleged deficiency was ascertained, was partial or incompíete, before he could offer evidence, challenging the correctness of the survey. Plaintiff by com *469 plaint alleged that the number of acres paid for was not in the tract purchased, that it paid for 832J4 acres, whereas there was only 738^4, a deficiency of ninety-four acres. This was denied by the defendant, and defendant by his second defense alleged that there was no deficiency, but all the land he conveyed, to wit: 832)4 acres, was there and there was no1 deficiency. Under the issuable facts as made by the pleadings the defendant could offer testimony to show there was no deficiency. The defendant asked for no judgment against the plaintiff, he had no counterclaim, he, by answer, denied the allegations of plaintiff’s complaint as to deficiency and set up, as a special defense, that within the boundaries, conveyed there was 832)4 acres, and plaintiff, having alleged there was a deficiency of ninety-four acres within the boundaries conveyed, the burden was on it to show the deficiency. In showing this it should have had all of the boundaries resurveyed, not part. It comes into Court with a partial survey of the lands purchased. It is admitted that Wateree River at this point is a now-navigable stream, the appellant by its deed from the respondent owns to the middle of stream, and in the resurvey the land covered by this stream is not included in the resurvey, the appellant claims a deficiency, has a resurvey, and does not include in that resurvey all of the land that it purchased and is entitled to possess. We think his Honor clearly was right in his construction of the pleadings, and in his charge to the jury in the matters complained of and made by these exceptions. Long v. Ry. Co., 50 S. C. 53, 27 S. E. 531; Latimer v. Cotton Mills, 66 S. C. 139, 44 S. E. 559; Hutchings v. Manufacturing Co., 68 S. C. 514, 47 S. E. 710. These exceptions are overruled. *470 3 *469 The fourth exception complains of error on the part of his Honor in not charging the plaintiff’s request as to the law of waiver, etc. There was an agreement to sell, first *470 in writing, and later, a deed of conveyance, made in pursuance of this agreement. Both the agreement to sell and the deed of conveyance contain the same description and boundaries, these agreements and deeds speak for themselves, and an examination of what his Honor said when the request was made of him to charge the jury by the appellant, convinces us that he was not in error, and did or said nothing that was prejudicial to the appellant. The defendant was present and assisted at first survey, he was not present at the resurvey. He had a right to assume that the surveyor knew his business, and would include the whole tract and everything in the metes and bounds set out in the deed of conveyance, made by him to the appellant. There was nothing on his part to show an intentional relinquishment of a known right, or such conduct on his part as to warrant such an inference. That the land was not included, in the survey that was under the water of the river was the act of the surveyor, and not his act.. When defendant was notified that survey was unsatisfactory, he insisted that this stream be surveyed and included. This, the appellant has not done, but is now in Court, claiming a deficiency, and does not have all that it is entitled to surveyed, and give to the Court the exact deficiency, if any, although it was in its power to do so. There is no doubt that Cassels, when.he conveyed, owned the land to the middle of the stream. This doctrine is fully recognized in Shands v. Tripletts, 5 Rich. Eq. 76; Noble v. Cunningham, McM. Eq. 394; State v. Bridge Co., 37 S. C. 137, 3 S. E. 55; McDaniel v. Power Co., ante 358. This exception is overruled. 4 The fifth and sixth exceptions, which complain of error in not granting a new trial, are overruled for the satisfactory reasons set out by the Circuit Judge in his order refusing same. Judgment affirmed.