Hammond v. Port Royal & Augusta Railway Co.

The opinion of the court was delivered by SimpsoN, C. J. In this case two causes of action were joined. In the first the plaintiif sued to recover a certain strip of land situate in the county of Aiken, in this .state, the same being two hundred feet wide and one mile and one-half long, extending through the plantation of plaintiff, known as “ Cathwood.” This strip of land the plaintiif had previously sold to the Port Royal Railroad Company as a right of way, upon which to construct a, portion of their railroad. The deed conveying this strip of land to said company will be hereafter considered. It may be stated here, however, that this deed was claimed by the plaintiif to be a deed upon conditions; that these conditions had been broken, -■and, therefore, that the title had been forfeited. This action was brought to recover the land. For the second cause of action the statement is as follows: 41 That said defendants having wrongfully taken possession of said tract of land aforesaid, had continued the construction and ■running a railroad through the same, and because of the negligent construction of said road-bed, the culverts, trestles and mudsills, so continued negligently and unlawfully, said defendants have damaged and almost completely destroyed the system of drainage which existed on the plantation of Cathwood aforesaid, by closing up and obstructing the ditches and canals’which supported said system, thus causing to plaintiff the loss of his crop and great deterioration in the value of his lands, to the damage of plaintiif eight thousand dollars.” To the first cause of action the defendants answered, denying title in the plaintiff and claiming title themselves. To the second defendants demurred, “ on the ground that complaint does not state facts sufficient to constitute a cause of action.” The case was heard before Judge Aldrich. The first issue tried was the issue of law raised by the demurrer. Judge Aldrich •overruled the demurrer. The defendants at once appealed, and — 26 — moved the court to proceed no further with the trial of the second cause of action. There is some difference of recollection between counsel as fa> what occurred at this point; bat the trial proceeded as to both causes of action. The defendants did not ask leave to file an answer when the demurrer was overruled, but distinctly refused. Upon the close of plaintiff’s testimony defendants moved for a non-suit on the first cause of action, on grounds which will be found in the grounds of appeal. This motion was refused. The jury found for the plaintiff the land in dispute and $6046.11. The defendants appealed on the various grounds which will be referred to as far as may be necessary in the discussion which follows. Should the demurrer have been sustained ? is the first question for our consideration. The complaint embraces two distinct causes of action; one for the recovery of a tract or strip of land and damages for its detention, and the other in the nature of an action on the case for damages done to real estate (other than this strip) by stopping up ditches, interfering with drainage, &c., &c., by defendants. Under the old practice these two causes of action could hardly have been joined in one suit, but under the code this is allowable, and hence no objection was interposed on that account. But the demurrer was based on the ground that while two or more actions may be joined in one suit or complaint, yet that these different causes of action must each stand on its own statements,, and must be considered as if no other was embraced, and upon demurrer each must be tested by what it contains, without help from any other count in the complaint. If this position can be sustained, then it will become necessary to test the second count by this rule. This question must turn upon the construction which must be given to the provisions of the code upon the subject of complaints. The code, although it has been in use in this state since 1870,. is still somewhat new to us. In our own decisions we have not as yet sounded its depths or reached its heights. Many questions have arisen elsewhere under it, which have not been presented to our courts. We have a right, it is true, to construe it. — 27 — for ourselves, and this we propose to do as necessity may arise but at the same time it will be our pleasure and duty to get all the aid we can from the decisions of able judges in other states,, and especially from the labors of distinguished writers and annotators who have made the entire system the subject of earnest, and profound study. Among these writers, Pomeroy and Bliss-are, perhaps, the'most prominent and most frequently quoted. Mr. Pomeroy, in section 275 of his Remedies and Remedial Rights, says: “ Where a complaint contains several counts, it is-a settled rule that each separate division or count must be complete by itself, and must contain all the averments necessary to-a perfect cause of action. Defects and omissions in one cannot be supplied by allegations found in another, nor can the pleader,, by merely referring to material facts properly set forth in a former count, incorporate them into and make them part of a subsequent one. In other words, all issuable or material facts-constituting the ground for a recovery must be stated in each cause of action, even though some repetition might thereby become necessary.” (/ Mr. Bliss (section 121) says: “The presumption is that every statement embodies a cause of action altogether new, hence the-rule that it must be complete in itself. It must contain all the-facts which constitute the cause of action embraced in it, and its-defects cannot be supplied from other statements. Although this reason is denied in Indiana, yet the requirement that each count shall contain the facts necessary to thé cause of action, is-rigidly enforced in that state, and a second count, which counted upon a mortgage, and referred to the land as described in the first, was held to be bad, on general demurrer, upon the ground that the court would not look outside the count for a description, of the land. So imperative is the requirement that each statement should be complete, that when a statute requires that copies-of the instrument upon which the action is based should be filed with the pleadings, it is held that where the same paper is made-the foundation of a second count, it should be referred to as filed with that count also.” The same has been held in Wisconsin and New York. Bliss, 121: “ Whenever a cause of action is attacked by a demurrer,. — 28 — •either against it alone or against the entire pleading, it must stand or fall by its own averments ; it cannot be helped out by .any facts, however sufficient in themselves, in another paragraph.” Pom., § 575; Alendorff v. Bondley, 2 Wis. 222. So far as this matter has been discussed in other states, this •rule seems to have been adopted and enforced with great strictness. At first it would seem to be harsh, rigid and extremely technical, and in .conflict with the liberal tendencies of the code; but, upon consideration,- it will be found based on correct principles and consonant with the true theory of pleadings. The code makes a considerable stride when it permits two or more different causes of action to be joined in the same complaint, and unless these different causes are kept separate and distinct, much ■confusion and complication must be the result. To prevent this, ■an orderly system of pleadings should be adopted, and to this end each action should be stated in a single and independent ■division, so that defendant might meet it without confusion with others, and each should contain all the averments necessary to raise the issues upon which the case is to be tried. This was always necessary under the old practice when actions could not be joined. The facts constituting the cause of action were required to be .stated in the declaration, not as a matter of mere form but as an essential element in the action, and without which it could not proceed; and there can be no reason why this should be dispensed with now because joinder is permitted. In Childers v. Verner & Stribling, 12 S. C. 8, Mr. Justice Mclver said : “ The rule is that while a plaintiff may combine in one complaint several distinct causes of action, yet these different causes of action must be stated separately, in order that the •defendant may plead to them separately, if necessary or desirable.” It would seem to follow as a necessary supplement to this that the causes thus stated separately should each, contain, in itself, •the necessary averments to support it. While the code has made .great improvement in pleading in the adoption of a single form -of action, and in cutting off much of its useless and unnecessary verbiage, yet, for the proper administration of the laws, some — 29 — symmetry and order should be preserved; and, in the absence-of statutory regulations to that end, the court should mould the pleadings into proper shape. And upon this matter, and for-this purpose, we are disposed to adopt the principles laid down by Pomeroy and Bliss, and the decisions in the other states, and hold that each count or statement of a cause of action in a complaint should contain, in itself, all the averments necessary to-develop the issues inyolved. Now apply this test to the statement • of the cause of action-attacked by the demurrer in this case. The wrong which the plaintiff seeks to have redressed by this action is an alleged injury to his Cathwood plantation, in Aiken county, caused by a serious interference on the part of the defendants with the ditches, canals and system of drainage, which, at great labor and expense,, he had established thereon. The only facts necessary to be stated in an action to redress-this wrong are, first, that the plaintiff is the owner, and is in possession of the plantation injured; second, that the defendants have committed the injury complained of; third, that the premises are within the jurisdiction of the court. It is true that these-facts are not as formally stated in the count as good pleading would require; but is there not enough to present these facts, and to show that they are relied upon as a cause of action, even without the help of any other count in the complaint ? It is certainly stated that the plantation injured is the Cath-wood place. The system of drainage, which is alleged to have been destroyed, is referred to as being on that place. It is further alleged that the plaintiff’s land and crops were injured, and no other land or place but the Cathwood place is mentioned. Is this not substantially an allegation that the plaintiff is the owner of the Cathwood place, and that it is the injury upon that place of which he complains? The defendants are sufficiently charged with committing this injury, and the venue is laid in Aiken county. As we have already said, it is true that these allegations are not as distinctly and as formally set forth as they should have been; and this style of pleading should not be encouraged. But, on the other hand, as the plaintiff has alleged enough, by close inspection, to — 30 — bring his case before the court, and it is apparent that the defendants have not been taken by surprise, we think the Circuit judge should be sustained in his order overruling the demurrer. By reasonable intendment the facts may be made out. Mr. Whitaker, quoting from Zabriskie v. Smith, 13 N. Y. 330, says: “It is sufficient that the requisite allegation can be fairly gathered from all the averments in the complaint, though the statement of them be argumentative and the complaint deficient in technical language.” On this branch of the case the defendants appeal, because the judge refused to charge that, under the second cause of action, “ the jury could not find damages for anything done prior to the possession of the defendants.” It seems that the Port Royal company, the predecessor of defendants, went into possession in 1873, and continued in possession until some time in 1878. The obstruction to the ditches began soon after the company went into possession, and continued during the whole period of its possession. The plaintiff commenced action against the company in Georgia in 1879, and recovered verdict for the damages up to that date, which the jury at that time assessed at $3000. The verdict was set aside by the ■Supreme Court of Georgia for the want of jurisdiction. The plaintiff then commenced proceedings in the United States Court at Charleston. The motion was referred to a referee, who assessed the plaintiff’s damages at $5640. That was May, 1878. The defendants went into possession in October, 1878, and the present action was instituted on the 20th of June thereafter. The greater part of the damages to plaintiff, then, had accrued before defendant’s purchase, and by the acts of others. The ■defendants were certainly not liable for injuries caused by the acts of other parties. There can be no doubt that the plaintiff has been greatly injured. This fact has been found by two juries, and also by a very competent referee. But there is no principle of law which can make one responsible for injuries which he had no agency in committing. The judge charged the jury: “If you find for the plaintiff, your next inquiry is, what are his damages? In deciding this you will take into consideration all you have heard as to the — 31 — value of the land then and now. Has the railroad company injured the plaintiff — and, if so, how much ?” This was calculated to mislead the jury, and, from their finding, they must have gone back behind the possession of defendants. We think the charge should have been more specific, and that the jury should have been confined, in accordance with the request of defendants to the damage resulting from defendants’ acts. As to the measure of damages, we see no error in the charge. Whether it should be measured by the rent of the land, the probable value of the crops that might have been grown, or- the permanent deterioration of the land, one or all, was a matter for the jury, dependent upon the evidence. But in no event should the defendants have been made responsible for any injury except that occasioned by their own acts of commission or omission. This brings us to the consideration of the grounds of appeal connected with the first cause of action. The prominent issue in that branch of the case is the title to the strip of land in dispute, and this must depend upon the construction which shall be given to the deed under which defendants claim. This deed is the deed of the plaintiff to the Port Royal company, through which the defendants claim. It is contended by plaintiff that this deed is a deed upon conditions, which conditions have been broken and violated, and, therefore, the title thereunder forfeited, and, on this account, the defendants cannot set it up. It would encumber this opinion too much to copy the deed in full. I shall, therefore, briefly state its conclusion. The habendum is: “ To have and to hold the said strip * * * unto the said party of the second part, their successors and assigns forever: provided always, and this deed is upon the express conditions : “ 1. That the right of way is granted under the restrictions of the act of the general assembly of South Carolina, of September 22d, 1865, and, if abandoned, reverts back to the party of the first part. “ 2. That the system of drainage shall remain the same as now, except that such ditches as have been filled up by the party of the second part are to be re-opened by them, and ditches to remain of such a depth as to allow, as heretofore, the drainage of the land to the depth of five feet. — 32 — “ 3. That whenever the road crosses the line of any fence or other enclosure of the party of the first part, the party of the-second part shall construct and keep in repair proper and sufficient cattle guards or stock gaps. And provided further, that the said railroad may occupy a wider space.” * * * Estates upon condition are of feudal origin, and have come down to us from that remote day. They are treated of not only in Blackstone but are recognized in Kent and Washburn, and all the writers on real property, and also in the decisions of many of the states of the Union. They are not favored, but when created by the parties interested they have been sustained. The condition which is to affect the estate may be express or implied,, and may be precedent or subsequent. Upon a precedent condition the estate may be commenced or enlarged, while a subsequent, condition defeats an estate already vested. In this case the conditions, if any, are subsequent, and we will c'onfine our attention to that class. The intention of the parties must always govern as to the question whether an estate upon condition has been created; but that intention must be reached by interpretation or construction of the instrument in which it is alleged to exist. Testimony dehors the instrument cannot be allowed. Hence, it is always a matter for the court and not a matter of fact for the jury. The judge seems to have submitted this question to the jury. This was erroneous and must be reversed. Mowry v. Stogner, 3 S. C. 231. The material question, however, in this deed is not met by this ruling. Does it create an estate upon condition subsequent ? This court might avoid this question under the grounds of appeal, but inasmuch as the case is to go back to the court below it is important that we should pass upon it now. Prominent among the forms of expression which create a condition in a grant or deed, as is found in all writers on this subject, are the following: “Provided always, on condition.” 4 Kent 122, 140; 2 Washb. on Peal Prop. 3. These expressions, both, are found in this deed, and they have been held sufficient to create an estate upon condition, unless there is something in the deed to negative this idea. And inasmuch as estates upon condition working forfeiture are odious, the courts have generally laid hold of any plausible feature to sustain the deed. — 33 — But what is there in this deed to negative the idea that these expressions were used according to their usual, and, we might say, judicial interpretation, when found in a deed ? It is said they imply a covenant running.with the land. Covenants running with the land are covenants which bind the grantor. This is not a deed of indenture, but is a deed-poll, signed by the grantor alone, and how can the stipulations in this deed be made the covenants of the grantee? If Hammond had intended to rely for his protection upon a covenant by the grantee, would he not have taken a separate instrument, properly prepared and executed ? The fact that he did not do this affords a strong presumption that he preferred the right to enforce forfeiture as the most effectual means of protection. His system of drainage had been constructed at great expense, and it was natural that he should desire to throw around it the most effectual safeguard, and the ' danger of forfeiture, on the part of the company, was certainly the highest incentive that could influence the company to do its duty in the premises. When, then, Hammond has used the very terms which the books lay down as the special terms to be used to create such an estate, and when this was his interest, and nothing is found in the deed to negative the idea that it was also his purpose, why resort to implication? Why not take him at what he says ? It seems to the court that it would be in violation of all rules of construction to hold otherwise than that this deed created an estate upon condition. What is the- effect of a subsequent condition? , There is a broad and wide distinction between a condition and a limitation. A limitation upon a condition, or, in other words, a conditional limitation, is where the property is limited over to a third party in case the condition be not fulfilled, denominated by Littleton a condition in law. 1 Inst. 234. In such case the estate determines, ipso facto, that the contingency happens. But when the estate is upon a condition in deed, as in this case, the law permits it to endure beyond the happening of the contingency. It is voidable, but not void ipso facto. 2 Bl. Com. 155; 4 Kent 127. Such conditions are not favored and must be construed strictly, and will, under no circumstances, be enforced further than may — 34 — be absolutely required, and so strong is this principle engrafted in the law that courts of equity will seldom lend their aid to divest an estate for the breach of a condition. If parties, however, will make contracts involving such conditions, they must not expect to get relief by any interposition on the part of the courts. In Hill v. Barclay, 18 Ves. 56, Lord Eldon said: “ Relief might be granted against a breach of a condition to pay money, but not where the breach of the condition consisted of acts of commission, directly in the face of it, and the law had ascertained the contract and the rights of the parties. A court of equity could not interfere.” Estates upon condition are created for the benefit of the grantor and his heirs and no one else can take advantage of the condition, and the estate is not divested until the grantor acts. The law, from the beginning, has prescribed the mode of action on his part. In some of the American states this mode has been altered by statute; not so, however, in South Carolina. Both the estate and the mode of enforcing forfeiture originated together in feudal times, and though the reasons for their origin as to both have long since passed away, yet they were adopted together, and must stand or fall together, except so far as any state may have amended by statute. Actu'al entry, or, if that be impossible, by claim, was the original mode of enforcing forfeiture. This was a part of the very law authorizing the estates upon condition subsequent. 2 Washb. R. P., § 16, 450; 4 Kent 127; 2 Greenl. Cruise, ch. II., §§ 42, 45, note 1. Mr. Washburn says that nothing short of an actual entry will serve to defeat an estate upon condition broken. Kinder v. Says, 46 Barb. 123. He adds: “It cannot be done by action, for, when the grantor conveyed, he parted with the seizin, which he can only regain by an entry made.” Shep. Touch. 496; Co. Lit. 218; Chalker v. Chalker, 1 Conn. 79. We have no authority which authorizes this court to modify this principle. In an action to recover real estate, the plaintiff must have title when he begins his action. In this case plaintiff parted with his title by the deed to the Port Royal company. Has this title returned to him? Ordinarily a reconveyance would be necessary, but in deeds upon condition an entry upon breach of con — 35 — •dition will operate as a reconveyance; or if entry cannot be ■made, claim will be sufficient; either will do, but in the absence of both the title cannot return. The Circuit judge should have charged the jury that entry, or, if that was impossible, claim was necessary on the part of the plaintiff to divest the defendants of title. We think there was ho error on the part of the judge in submitting it to the jury as a question of fact, whether the plaintiff had waived his right to enforce forfeiture. All the authorities agree in the opinion that this is a right which may be waived. Whether it has been waived in a given case, is entirely a matter of intention on the part of the grantor, to be reached in each case by the special facts. In some cases it has been decided that long acquiescence after condition broken, standing by and permitting improvements, unexplained, and acts of that kind, might be relied on as evidence of waiver; but we know of no rule of law more certain or more explicit than .to say that where the evidence shows an intention to waive this right, then this intention must govern, and when once the right is waived it is gone forever. Washb. and Kent, supra. We do not think that considerations of public policy can enter ■into this case. The Port Royal company had the right, under the act of the general assembly, to condemn this strip of land, and take possession by virtue of the mode therein prescribed. If it saw proper to resort to a private agreement and purchase, we ■do not see that they can interpose the public interests as a shield against their positive and distinct contracts, especially as the conditions imposed were reasonable and proper, and do not appear to have been surrounded with any great difficulty in being met and discharged. We think that the notice of appeal from the order overruling the demurrer should have stayed proceedings as to the second cause of action until the appeal was heard. Code, § 369. The judgment below is reversed and the appeal sustained, and it being admitted that there was no evidence whatever showing entry or claim before action brought, the defendant’s motion for non-suit as to the first cause of action should have been granted, — 36 — and the judge’s order refusing this motion is reversed and the’ non-suit ordered. The case is remanded for a new trial on the-second cause of action. McIver and McGowaN, A. J.’s, concurred.