Opinion
12671
June 4, 1929.
Before GRIMBALL, J., Charleston, June, 1926. Affirmed.
Action by Frank Smith against J.F. Prettyman Sons and another, subsequently dismissed except as to defendant J.F. Prettyman Sons. Judgment for defendant, and plaintiff appeals.
The Master's report, decree of the Circuit Judge, and exceptions to the decree were as follows:
REPORT OF MASTERTo the Honorable, the Court of Common Pleas for the County and State aforesaid, I would respectfully report:
That by an order of Hon. W.H. Townsend, presiding Judge, dated and filed September 2, 1924, it was inter alia ordered as follows:
"Ordered, that it be, and is, hereby referred to H.W. Harvey, Esq., Master of Berkeley County, to take testimony, hear and determine, the matter of whether or not the defendant J.F. Prettyman Sons is entitled to any damages, and if so, the amount thereof, under the bond filed herein by the plaintiff, under the provisions of the restraining order, by reason, or on account of, the said restraining order, and that the said Master do report his findings in regard thereto, to this Court."
That pursuant to due notice to the said plaintiff and his bondsmen, L.M. Overton and T.P. Crawford, and their attorneys, I held a reference in Moncks Corner, S.C. on December 16, 1924 (my notes of which reference have heretofore been filed), and took all testimony offered. That subsequently the questions involved were fully argued before me by the attorneys for all persons concerned.
That it appears from the record: That the complaint was dismissed as to the defendant E.P. Burton Lumber Company, and it need not be referred to in this report. It further appears that the plaintiff instituted suit against the defendants, alleging that the defendants claim a tract of land containing 1,028 acres, and fully described in the complaint, and that the plaintiff obtained a restraining order against the said defendants, which provided, inter alia, as follows:
"Ordered, that the defendants, J.F. Prettyman Sons and E.P. Burton Lumber Company, their agent, servants, and employees, or the agents, servants and employees of either of them, and all other persons whomsoever claiming or acting by, under, through or for them, or either of them, be, and they hereby are, enjoined and restrained from entering upon the premises described in the complaint herein, and from cutting and removing therefrom, or from any part thereof, any timber, and from otherwise interfering with plaintiff's possession and occupancy of said premises, or any part thereof."
That the said restraining order was served on the defendant, J.F. Prettyman Sons, on February 18, 1924. That under the provisions of the said restraining order, the plaintiff gave the usual bond, with L.M. Overton and T.P. Crawford as sureties, in the sum of $500, condition for the payment to the defendant of "such damages, not exceeding said sum, as the defendants, or either of them, may sustain by reason of the injunction herein, if it is finally decided that the same should not have been issued."
That J.F. Prettyman Sons answered, claiming a part of the tract of land described in the complaint, and also setting up its title to certain timber, timber rights, and a right of way in fee, on the said tract of land, by exactly the same description as appears in the complaint. That subsequently J.F. Prettyman Sons filed a supplemental answer, disclaiming any title to the said tract of land, except the timber, timber rights, and right of way in fee, thereon covered by the timber deed, held by it.
That by said order of Judge Townsend, first herein referred to (dated and filed September 2, 1924), the line between the tract of land described in the complaint and an adjacent tract of land owned by the said J.F. Prettyman Sons, was fixed, the said J.F. Prettyman Sons was adjudged to be the owner of the timber, timber rights, and other rights claimed by it, on the tract of land described in the complaint, and the said restraining order was "vacated and dissolved." That the said restraining order was modified by Judge Memminger, but, under the view I take of this case, it is not necessary to refer to this order.
It was admitted by the attorneys for the plaintiff and his bondsmen, at the hearing before me (as perforce it had to be) that J.F. Prettyman Sons, at the time of the institution of this suit, and the service of the said restraining order upon it, owned and still owns, the timber, timber rights, and right of way in fee, as claimed by it, on the tract of land described in the complaint. It is contended by the plaintiff and his bondsmen, that the former sustained his contentions, and that the defendant, J.F. Prettyman Sons, even if damaged by reason of the restraining order, cannot recover, and that if this proposition is not tenable, that the said defendant, J.F. Prettyman Sons, has proved no damages, I cannot sustain either of these propositions.
As to the first proposition:
There was cited to sustain this proposition the case of Garlington v. Copeland, 43 S.C. 389. While I do not think that this case, under the facts peculiar to the case at bar, is controlling, that case has been modified and explained in the more recent case of Lewis v. Jones, 65 S.C. 157, which certainly does not support the contention of the plaintiff and his bondsmen. Again, the very recent South Carolina case of Chambers v. Long (opinion filed July 27, 1925), controls the case at bar, and shows conclusively that the defendant, J.F. Prettyman Sons, is entitled to recover damages, if any were sustained by it, by reason of the injunction.
Whatever may have been the contention between the parties as to the ownership of the fee to the said tract of land, or a portion thereof, it is an undisputed fact that J.F. Prettyman Sons did own the timber, timber rights and a right of way in fee thereon. This defendant was certainly enjoined from exercising the rights and using the property and property rights, which it admittedly owned, and it is also a fact that this injunction was vacated and dissolved.
I find, therefore, that J.F. Prettyman Sons is entitled to damages, if they sustained any, by reason of the said injunction.
As to the second proposition:
It will serve no useful purpose to review the testimony. It has been fully and clearly established that by reason of the injunction, the said J.F. Prettyman Sons was put to considerable expense and loss, and so suffered damages by being forced to locate its logging railroad tract, and to log the timber owned by it on the tract of land described in the complaint, in a different and much more expensive manner than it would have done had it been at liberty to exercise the rights enjoyed by it — which rights it was enjoined from exercising. The damages so sustained by it were proven to be at least four or five times greater than the amount of the bond.
I, accordingly, find for the said J.F. Prettyman Sons damages against the plaintiff Frank Smith and his bondsmen, L.M. Overton and T.P. Crawford, in the sum of $500, the full amount of the said injunction bond, and recommend that judgment be given accordingly.
ORDER OF JUDGE W.H. GRIMBALLThis case came on to be heard before me by consent of the parties at my chambers, in Charleston, S.C. on June 1, 1926, upon exceptions of the plaintiff, Frank Smith, and his bondsmen, L.M. Overton and T.P. Crawford, to the report of H.W. Harvey, Master, herein, dated August 15th, 1925, and filed the same day; upon hearing the matter and upon due consideration thereof, it is ordered that the said exceptions be, and the same are hereby, overruled; it is further ordered that the said report of H.W. Harvey, Master for Berkeley County, dated and filed August 15, 1925, be, and the same is hereby, ratified and confirmed in all respects and adopted as to the order of this Court; it is further ordered that the defendant, J.F. Prettyman Sons, have judgment against the plaintiff, Frank Smith, and his bondsmen, L.M. Overton and T.P. Crawford, in the sum of $500, with interest thereon at 7 per cent. from August 15, 1925, and that the said defendant, J.F. Prettyman Sons, have leave to enter up judgment at once therefor. Let judgment be entered accordingly.
EXCEPTIONS(1) That his Honor, Judge W.H. Grimball, erred in overruling and not sustaining exception 1 from the Master's report, it being respectfully submitted:
(a) That the record in this case shows that the plaintiff succeeded in establishing his contention.
(b) That J.F. Prettyman Sons first filed an answer claiming to be the owner of the tract of land described in the complaint, or the greater part thereof, and subsequently filed a supplemental answer disclaiming any title to the said tract of land, thereby receding from its former position and admitting that the plaintiff was correct in his contention.
(c) That it has not been found by the Court in this case that the restraining order was wrongfully granted.
(d) That the result of the suit and the recession of J. F. Prettyman Sons from its first position as revealed by its original answer, and the admission arising from the filing of the supplemental answer by it, establishes the fact that the restraining order was rightfully granted, and therefore the condition of the bond has not been broken, and J.F. Prettyman Sons cannot recover any damages from the plaintiff, or the sureties on his bond.
(2) That his Honor, Judge W.H. Grimball, erred in overruling and not sustaining exception 3 from the Master's report, it being respectfully submitted that the Master erred in finding for the said J.F. Prettyman Sons damages against the plaintiff, Frank Smith, and his bondsmen, L.M. Overton and T.P. Crawford, in the sum of $500, the full amount of said injunction bond, and in recommending that judgment be given accordingly; it being respectfully submitted that the said Master should have found that the said J.F. Prettyman Sons could not recover any damages for the reason that the plaintiff established his contention, and the Court, in effect, found, and J.F. Prettyman Sons admitted, that the injunction was rightfully granted, and that the testimony showed that the said J.F. Prettyman Sons did not sustain any damages.
(3) That his Honor, Judge W.H. Grimball, erred in ordering judgment to be entered against the plaintiff and his sureties; it being respectfully submitted that the record clearly shows that the restraining order in which the injunction bond was directed to be furnished was properly and rightfully granted.
Messrs. Hinds Meadors, for appellant, cite: As to injunction: Sec. 486, Code Proc.; 43 S.C. 398. Cases distinguished: 65 S.C. 157; 132 S.C. 179. Rights of lessee to land: 36 C.J., 51; 77 S.C. 129; 40 S.C.L., 247; 35 C.J., 1086.
Mr. Legare Walker, for respondent, cites: As to damages from injunction: 78 S.C. 226; 132 S.C. 179; 65 S.C. 157; 64 S.C. 438; 43 S.C. 396; 32 L.R.A., 329; 89 S.C. 456; 2 High on Inj., 1867.
June 4, 1929. The opinion of the Court was delivered by
The facts and issues involved in this case are fully stated in the following agreed statement contained in the transcript of record:
"The above action was commenced on or about the 18th day of February, 1924, in the Court of Common Pleas for Berkeley County by Frank Smith against J.F. Prettyman Sons, a corporation, and E.P. Burton Lumber Company, a corporation, by the service of the usual summons and complaint hereinafter incorporated in full, by which complaint the plaintiff alleges that he is the owner of a tract of land therein described and that the defendants claim to be the owners of said premises or the greater part thereof, and that the defendants intend and are preparing to, in the very near future, enter upon the premises for the purpose of cutting and removing the timber therefrom, asserting the right to do so upon the unfounded claim of ownership to the premises. Along with the summons and complaint was served a temporary restraining order signed by his Honor, Judge I.W. Bowman, dated February 16, 1924, enjoining the defendants from entering upon the land described in the complaint and from cutting the timber thereupon and from interfering with plaintiff's possession and occupancy of the land and requiring the plaintiff to furnish an injunction bond in the sum of $500 conditioned for the payment to the defendants of any damage which they, or either of them, may sustain, by reason of this injunction, not exceeding said sum, if it is finally decided that the same should not have been granted, which bond was duly executed by plaintiff and his sureties, L.M. Overton and T.P. Crawford, and filed in Court. In due time the defendants answered, J.F. Prettyman Sons denying the plaintiff's allegations of ownership of the premises and admitting the allegation that it claims to be the owner of the said premises or the greater part, and that it intends and is preparing to in the very near future enter upon the premises for the purpose of cutting and removing therefrom the timber thereon, as it has a right to do, it being the owner of the timber on the said premises and the owner in fee of the premises or the greater part thereof. The answer contained a further defense that it was also the owner of certain timber, timber rights, and other rights, including a right of way in fee, 80 feet in width, upon, over, and across the premises described in the complaint, with the source of its title to the same. In its answer, E.P. Burton Lumber Company disclaimed any title in itself, but affirmed substantially the allegations made by its codefendant in its answer. The summons and complaint were filed on or about the 18th day of February, 1924, and after the time for docketing the cause for trial at the spring, 1924, term of Court for Berkeley County, indorsement was made on the said summons and complaint directing the Clerk to docket the same on Calendar No. 1, and the Clerk so docketed the same. Upon the sounding of the docket at that term by his Honor, Judge J.K. Henry, the case was continued, on the motion of the attorneys for the defendants, on the 7th day of April, 1924.
"After notice duly served, the defendant, J.F. Prettyman Sons, moved Hon. R.W. Memminger on May 27, 1924, for an order dissolving the restraining order in this case signed by his Honor, Judge I.W. Bowman, or modifying the said restraining order so as to permit the said defendant to enter upon the land for the purpose of cutting and removing such timber thereon and enjoying and exercising each and every right, during the period of time for which the defendant, J.F. Prettyman Sons, is entitled under a certain deed from Daniel Smith to Freeman S. Farr, trustee, dated October 23, 1903, and recorded in the office of the Clerk of Court for Berkeley County in Book C-7, p. 16, and under certain notices and extension agreements thereafter executed in connection with the timber and timber rights on said tract of land. Such timber and timber rights as were conveyed and acquired by and under said deed, notice, and extension agreements, at that time being vested in the defendant, J.F. Prettyman Sons, and so as in no way or manner to limit or affect the location, occupancy, and use, by the said J.F. Prettyman Sons, as successor in title and present owner of, the right of way in fee across the said tract of land. After considering the motion his Honor, Judge Memminger, made an order modifying the restraining order upon the conditions stated in his order, which is hereinafter set out in full, this order being dated May 29, 1924.
"On the 24th day of July, 1924, the defendant, J.F. Prettyman Sons, executed, and, on August 14, 1924, filed, the bond as provided for in the order of Judge Memminger, and proceeded with its preparation to enter upon the tract of land and cut and remove the timber thereon. On the 12th day of August, 1924, the defendants served a supplemental answer, admitting that the plaintiff is the owner of the premises described in the complaint, except that the said J.F. Prettyman Sons is the owner of certain timber, timber rights and other rights, including a right of way in fee, 80 feet in width, on, over, and across the tract of land described in the complaint (and setting for the devolution of its title thereto), and except further that they are informed and believe that the plaintiff claims that the tract of land described in the complaint includes a portion of a tract in Berkeley County containing 1,325 acres, more or less, conveyed to J.F. Prettyman Sons by E.P. Burton Lumber Company, in fee, giving the date and place of record of the deed to it, and denying the plaintiff's claim thereto, but that if plaintiff's claim is sustained, that it owns the timber, timber rights, and other rights, including the said right of way 80 feet wide, in fee on the same under the Daniel Smith timber deed of 1903 and the subsequent notices and extension agreements.
"After the filing of the supplemental answers, a final order in the cause was agreed upon, and, with the consent of the attorneys for all parties interested, such order was signed by his Honor, Judge W.H. Townsend, on September 2, 1924, transferring the case from Calendar 1 to Calendar 2, dismissing the complaint against E.P. Burton Lumber Company, fixing the dividing line between the remaining portion of the tract of land known as the `35 mile house tract' owned by the plaintiff, and a certain tract of land known as the `Big Bay tract' owned by J.F. Prettyman Sons, adjudging that J.F. Prettyman Sons owns the timber, timber rights, and other rights claimed by it under the timber deeds and extension agreement set forth in its supplemental answer on, over, and across the lands of the plaintiff `known as a portion of the 35 mile house tract' as shown on a map attached to the said decree canceling the bond filed by J.F. Prettyman Sons under the order of Judge Memminger, and discharging the sureties thereon from liability, vacating and dissolving the restraining order of Judge Bowman of February 16, 1924, and referring to the Master of Berkeley County to take testimony, and to hear and determine the matter of whether or not the defendant, J.F. Prettyman Sons, is entitled to damages, and if so, the amount thereof, under the bond filed by the plaintiff, by reason, or an account of, the restraining order. Hon. H.W. Harvey, Master for Berkeley County, after giving due notice to plaintiff and his sureties, took testimony and heard arguments and made his report, finding that the defendant, J.F. Prettyman Sons, is entitled to damages to the full amount of the penalty of the bond, to wit, $500; the report of the Master being hereinafter set forth in full.
"In due time the plaintiff and his sureties, L.M. Overton and T.P. Crawford, served and filed exceptions to the report of the Master; these exceptions being hereinafter set out in full. The exceptions from the report of the Master were argued before his Honor, Judge W.H. Grimball, who by his order dated June 1, 1926, overruled the exceptions and confirmed the report of the Referee, and ordered judgment against the plaintiff and his sureties for $500 with interest at 7 per cent. from August 15, 1925. In due time notice of intention to appeal from this order was served in behalf of plaintiff and his sureties, and the case is now on appeal from this order of Judge Grimball upon the question as to whether or not, under the circumstances, the defendant, J.F. Prettyman Sons, is entitled to recover any damages, it being admitted that if entitled to any damages, the said defendant is entitled to the amount found."
For the reasons stated in the report of the Master and confirmed by his Honor, Judge Grimball, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.