White v. Barlow

1. If a ditch for mining purposes be cut through land by the owners thereof, for use in connection with mines upon such land, the sale of the land under execution will convey the ditch, although no express mention of it may be made in the levy or the deed; and the water in such ditch, which gives it its value for mining purposes,passes with it. (a.) Where the legislature chartered a company and authorized it to dig a ditch so as to convey the water from certain creeks to its mining lands, and the ditch was cut and used by the company, in a subsequent contest concerning the title thereto, the presumption would be that the company acquired in the mode prescribed by the charter the right to cut the ditch and convey the water over ■ the lands of others after just compensation. 2. A tenant cannot dispute his landlord’s title, and the title of the landlord is good against such tenant, or one holding under him with notice. 3. A bill was filed to recover certain property. The principal defendant filed a disclaimer of title as to the property, but asserted that it was the property of a corporation of which he was the president, and which it was prayed should be made a party, and that the acts complained of as Ms were really those of the company. The answer also setup certain acts of the complainant as injurious to the company, and claimed damages therefor. On demurrer, the court struck so much of the answer as related to the wrongful acts of the complainant. The individual defendant excepted; the company did not: Held, that the ruling was not one which injured the plaintiff in error, and the company is not before this court. 4. Where an assignment of error is based on the refusal to admit certain statements of a tenant in possession, such assignment cannot be passed upon by this court, unless the statements are set out. 5. The rejection of the amended charter of the company was not a ruling which could injure the individual member excepting. 6. Nor could it hurt- the individual plaintiff in .error, who had disclaimed title to the property in controversy, that the court submitted to the jury the question, whether the evidence showed that the ditch was being used by the defendants in fi. fa. at the time of levy and sale or not. 7. Although it would have been better to have charged that one purchasing from a tenant with notice would be estopped from denying the title of the landlord, yet where it was clear that the defendant had notice, the omission to charge as to its necessity was not error which would require a reversal. (a.) Notice to the president of a corporation purchasing property is notice to the corporation. 8. Exception to a long paragraph of a charge containing numerous points, without specifying any error therein, is too general. The charge in this case was substantially right. (a.) One who disclaims all title to, or interest in, property sued for cannot be hurt by a recovery thereof bv the complainant; and such a verdict furnishes no ground for a motion for new trial or exception to this court on his behalf. (6.) The law and facts sustain the verdict.

Title. Deeds. Appurtenances. Mining. Landlord and Tenant. Estoppel. Vendor and Purchaser. Notice. Practice in Supreme Court. Corporations. Charge of Court. Before Judge Estes. Lumpkin Superior Court. October Term, 1883. Barlow filed a bill against White to recover possession of a water ditch in Lumpkin county, and to enjoin the defendant from interfering with it or cutting and taking water from it. Defendant disclaimed title in himself, and asserted that he held as president of the Pigeon Roost Mining Company, and that the acts complained of were done as such, and it owned the property.. He amended his answer by asking that the company be made a party, and alleging that complainant had constructed a “ sluice-way and box ” and ore-sheds, which interfered with the use of the property by the company, and that complainant had commenced suits which involved the title to the property, without the shadow of right, and to the injury of the company, and it was stated that the company therefore prayed damages, injunction, removal of the sheds, etc., and general relief. The court, on demurrer, struck so much of the answers as set forth the injuries to the company from sluices, etc., and from the filing of the bill, and prayed damages and relief. On the trial, the controlling points were as follows: Barlow claimed the ditch and water under certain sheriff's deeds based, on fi. fas. against the Georgia Company in 1871. The levies were made on the lots by number, and the deeds conveyed the lots named with their rights, members and appurtenances, but neither the levy nor the deeds mentioned the ditch by name, and the sheriff testified that he. did not levy on the ditch in terms, but levied on whatever went with the lots. It appeared that the Georgia Company was incorporated for mining purposes and empowered to cut this ditch, which was done, and the water conveyed to certain lots belonging to it, from which ore was “ sluiced ” to the mill; and the company and its agents controlled it for some years. The Pigeon Roost Company claimed by subsequent deeds, some of which specifically mentioned the ditch; and there was evidence of the use of the ditch for working other mines than that of the Georgia Company, but it was testified to be since the sale, or by consent of that company, and tbe question was, whether the ditch passed under the sheriff’s deed. There was also evidence to show that one Weaver held as a tenant, under complainant, and that he and one Parker made a deed which was one of the muniments of title under which the Pigeon Roost Company claimed; also that White, the president of the Pigeon Roost Company, had notice of the claim of complainant before he bought. The jury found for the complainant. Defendant moved for a new trial, on the following grounds: (1.) Because the verdict was contrary to law, equity, evidence and the weight of evidence. (2.) Because the court refused to allow the amendment offered by defendant in his cross-bill and answer, and sustained the demurrer to said amendment. (3.) Because the court refused to permit the jury to render a verdict in favor of defendant, upon the conclusion of complainant’s evidence, upon motion, the sheriff’s deed and other evidence not showing any title in complainant. (4.) Because the court refused to permit John A. Parker, a witness for the defendant, to testify as to the statements of John W. Weaver, agent and tenant of the complainant, as to the ownership of the ditch in dispute. [What statements it was desired to prove was not shown.] (5.) Because the court rejected from evidence the amended charter of the Pigeon Roost Company granted by the superior court in 1880. [The object of this seems to have been to show a recognition of White and his associates as successors to the original corporators under the act of 1876, p. 247. The amendments made were entirely immaterial.] (6.) Because the court refused the following request: In your inquiry as to Barlow’s title, as he claims title by virtue of a levy and sale and sheriff’s deed, you will have said levy and deed before you. Look into them and see whether or not said levy and deed contain any legal specification of said ditch. If they do not, then no title to the aitcli ever passed to Barlow by said deed. If you should be in doubt as to whether said levy and sale included the ditch, from the papers themselves, then you would be authorized to consider what J; P. Harrison, sheriff, testified as to whether the ditch was levied on or not. If it should appear the ditch was not levied on by the sheriff, then the sheriff could not sell or pass any title to Barlow, under said levy, no matter what may be stated in the sheriff’s deed. Look into the evidence; if the ditch and the water therein were being used by three parties, at that time on other property or lands not contained in said sheriff’s deed to Barlow, then this ditch, in law, was not an appurtenance to said lands sold by the sheriff, and the title would not pass to Barlow.” (7.) Because the court- charged as follows; “If the gold mill of the Georgia Company was on the property purchased by the complainant, and the ditch in dispute was used" by the Georgia Company in connection with said mill in its mining operations, in washing down ore to said mill, the mere fact that any of said mining was done on other property was no reason why the ditch could not be an appurtenance to said mill and the lot on which it stood.” (8.) Because the court charged as follows: “ If the jury find from the evidence that John W Weaver was in possession and control or use of the ditch in dispute as a tenant or agent of Barlow at the time the said Weaver joined in the conveyance of said ditch to the Pigeon Roost Gold Mining Company, then the said Weaver would be estopped from denying that the complainant, Barlow, was the owner of this ditch, and the purchasers under Weaver would likewise be estopped from disputing the fact that Barlow was then the owner of the ditch in dispute.” (9.) Because the court charged as follows : “A water-ditch may be held, owned, used and possessed, bought and sold and levied on and sold as a separate and independent estate. But a water-ditch may also be an appurtenant or incident to another estate. So that a tract or parcel of land, when sold either at private or public sale, often carries with it many other things which are not mentioned. For instance, if a man sells a mill and describes it as a mill, the grant of a mill carries with it the head of water by which the mill is operated; so it also carries the right to flow the seller’s land, and the whole right of water which had been previously used by the grantor - so it carries the flow of water in the race-way; and if it draws its principal supply of water from a reservoir on the same stream, at a distance above the mill, then the sale of the mill will convey also the upper dam and reservoir. In this case, you will inquire, by examining the title deeds in evidence and from all the other evidence in the case, what was sold to and what was bought by the plaintiff, L. M. Barlow. Ehe plaintiff insists that the ditch in dispute was sold by the sheriff and bought by him, with the other property which he bought; that the ditch was an appurtenant or incident to the property and passed by his purchase. Now, in order to determine whether the ditch in question is an appurtenant or incident to the purchase of the plaintiff, Barlow, you will inquire what he did purchase, what was on it, what was it used for, what was the purpose for which it was before used, and what reasonable use it was likely to-be put to, who made or dug the ditch, who used it, what was it dug for, what had it been used for, on what land was it used; did its use pertain to other property which Barlow, the plaintiff, bought; was the ditch necessary to the usual ordinary use and enjoyment of the other property ? Had the Georgia Company, as whose property the plaintiff claimed it was sold, used the ditch or water? If so, what for? Was it necessary to ordinary, usual or convenient use of other property bought ? These, and such as these, are pertinent inquiries to enable you to determine whether or not the ditch and its water now-in dispute passed to Barlow by his purchase or not. If you believe from the evidence (hat the ditch in dispute had been made and used by those under whom he claims to work the gold mines or mills -which were on lands bought by plaintiff, and that said ditch was necessary to the profitable convenient use and enjoyment of the other property he had bought, then it was an appurtenance or incident to the property, and if it was such an appurtenance or incident, then a purchase of the lands, mines and mil s would convey with it the ditch also, and that, too, without a mention of it in the levy or the deed.”