Summary
BEFORE MUNRO, J., AT COLLETON, SPRING TERM, 1860.
The report of his Honor, the presiding Judge, is as follows:
“ This was an appeal by the Railroad Company from an assessment made by a majority of Commissioners appointed to assess the amount of damages due to the land owner, for the right of way through his land, taken by the company. See Charter of road, Act of 1853, sect. 9, 12 Stat. p. 274.
“The defendant is the proprietor of a large.body of lands, containing about ten thousand acres, situate in St. Bartholomew’s Parish. It consists partly of high land, and partly of inland swamp; tbe latter is used in the cultivation of rice, and has been so employed for many years.
“The road passes through the centre of defendant’s plantation, and extends a distance of four miles, less six hundred yards. The quantity of land taken for the site of the road is eleven and a half acres of rice land, four and a half acres of permanent reserve, seventy-eight and a half acres of high land, making in the whole ninety-four and a half acres.
“ It appeared that some time in the year 1858, the parties being unable to agree on the terms upon which the road was to pass through defendant’s land, Commissioners were appointed, in conformity with the provisions of the Charter, to assess compensation for the injury the defendant had sustained. The Commissioners so appointed went upon the land, but being unable to agree, as was stated by one of them who was examined as a witness, ‘ they broke up in a row.’
"Subsequently five other Commissioners were appointed for a similar purpose, namely: Charles Hanckel and H. E. Young, on behalf of the company — Joel Lariscy and Burrell Sanders on behalf of the defendant, and the fifth Commissioner, Elias Yanderhorst, was appointed by one of the Law Judges.
“ On the 9th of March, 1859, these Commissioners went upon the land, and on the following day, the 10th, made their assessment or award; that is to say, a majority of them, namely: Messrs. Yonderhorst, Sanders and Lariscy assessed the defendant’s damages, “subject to the conditions, restrictions and stipulations set forth in the paper annexed to their report, and marked A,” at forty thousand dollars.
“The other'two Commissioners, Messrs. Hanckel and Young, estimated the damages at two thousand and fifty dollars. See the. Commissioner’s award, marked A, and the document accompanying it, marked B. (a)
“ As tbe document last referred to occupies somewhat' of a-, conspicuous place in this proceeding, it is proper I should refer to it at once.
“ It purports to contain ‘ conditions, restrictions and agreements, relating to the land of Daniel Blake, required by the said company for tbe site of tlreir road.’ It bears date the 9th of March, 1859, the day the Commissioners went upon, the land to assess the damages, was signed and agreed to by J. L. Petigru, Esq., on behalf of the road, and by C. Cf. Memminger, Esq., on bebalf of the defendant, and contains twelve distinct covenants or stipulations, embracing a variety of matters and things therein specifically enumerated.
“ If, upon the opening of the case, the provisions of this instrument had been distinctly brought to my notice, the effect would have been to have spared the Court and myself a vast amount of unnecessary labor, for I feel no hesitation in saying that, with the views which I entertained of its provisions after I had acquired some knowledge of them, I would have excluded a very large proportion of the testimony that was introduced on both sides, either upon the ground of its incompetency or its irrelevancy.
“The result of such a course would have been, to have narrowed the case down to a single point, namely, the proper construction of this agreement, and its effect upon the defendant’s right to compensation.
“ I will now proceed briefly to state when it was that, for the first time, I acquired any thing like a distinct understanding of the terms of this agreement.
“ In accordance with my ruling, the case was opened by the company; but it 'was not until the close of the examination in chief of the first witness, Mr. Young, that the Commissioners’ report and the document in question were introduced and read.
"Not being furnished with a copy of it, the impression made upon my mind upon hearing it read, was soon effaced by the necessity of turning my attention to the cross-examination of the witness, which immediately followed the reading of the paper. The examination of the plaintiff’s witnesses occupied the balance of that day.
“ On the following day, the defendeut went into his defence, which occupied the entire day. In the course of that day I obtained a copy of the stipulations, but it was not until the Court had adjourned in the evening that I had an opportunity of examining its provisions. But by this time nearly the whole of the testimony had been gone through.
“Now, whatever difference of opinion may exist as to the proper construction of this instrument, whether it was the intention of the parties to it, that its several stipulations should extend to every matter or thing from which injury might result to the defendant from this structure, and whether or not it should have relation back to the period when the suit commenced, so as to exclude him from claiming any damages he may have sustained between that period and the date of tbe agreement, leaving to the Commissioners nothing else to do than merely to assess tbe value of the land taken for the site of the road; there is one thing, however, about which there can bardly exist the slightest diversity of opinion, and it is tbis: That for tbe violation or breach of-one or of all of these several stipulations, on the part of the company, from the time of its date, the defendant’s only remedy was by action on the instrument.
“Now, whether we look to tbe defendant’s claim for damages, (b) or to the testimony of bis witnesses, it will be seen that, so far as concerns the items included in the stipulations, there was no attempt to confine the testimony to whatever damages may have accrued antecedent to their date. Nor was any attempt made to distinguish between those matters included within the stipulations and those that may be outside of them; but on the contrary, the defective or insufficient nature of many of the items actually embraced within the stipulations have been made the subject matter of damage— for example, namely, all the defendant’s witnesses testified to the insufficiency of the cattle guards, the culverts, the ramps, the ditches, the defective character of the trestle work, and its tendency to obstruct the drainage, the main force of the testimony being directed against this item, the extension of the embankment into the rice fields further than.it was at the date of the agreement, &c. That these are matters falling within the very letter of the agreement no one can doubt.
“I now propose to submit a few remarks on the defendant’s claim for damages. If it had been defendant’s purpose to have limited his claim for damages to injuries done to matters outside of the agreement, or for injuries done to such things as are embraced within its provisions, but antecedent to its date, such matters should have been specially designated, and the evidence adduced to sustain them strictly confined to those points. But his claim is couched in terms as general and comprehensive as if no such agreement had ever existed. But in looking at the several items in this document, it is quite apparent that, with the exception of cutting the plantation in two, there is not another item that is not, either in the whole or in part, covered by the stipulations.
“As regards the first'item, the claim for the value of the land taken for the site of the road, this is entirely unobjectionable. As regards the second item, ‘three hundred and thirty acres of high land, damaged for agricultural purposes,’ it will be seen by reference to the second specification that provision is there made for the drainage of this portion of land by means of a culvert, and ditches to lead the water into it. This portion of land is still uncleared, and no attempt has as yet been made to bring it under cultivation. When the Commissioners went upon the land to assess the damages, they found that, the embankment thrown up by the Company at this point had obstructed the natural flow of the water, so that there was a considerable part of it overflowed, but so soon as the culverts were constructed, and the ditches cut, although the Chief Engineer said that the drainage at this point was not yet completed, the water passed off. Some time during last March, Mr. Michel made a survey and plat of the premises, the object of which was to show that, in the then condition of things, the culvert and ditches were wholly inadequate to the purposes of complete drainage, and to the same effect was the testimony of all the witnesses examined to this point. But assuming the drainage at that point to be insufficient and inadequate; is this not already a breach of the agreement on the part of the Company, and which can only be redressed by an action on that instrument ? .
“ The third and fourth items may be considered together. The claim is for damage done to these two portions of rice land, occasioned principally, if not entirely, by the trestle work. It will be seen that at the date of the agreement between the Company and the defendant, no trestle work had been put up. By the fourth and eighth stipulations, provision is made for the drainage of the rice lands — the fourth is in these words: ‘ The spring ditches on the sides of the rice fields at the embankments, and carried into the said rice fields, are to be restored and carried through the said embankments by the Company,, of sufficient width and capacity to satisfy the proprietor of the land; the trestle across the rice fields is to be a pile driven into the mud on each side of the track, at the proper distance, but without any mud sill, and the embankment to extend no further into the two rice fields,’ &c. The eighth stipulation is as follows: ‘ In the large rice fields next reached by the road to the west, the trestle work shall be made as already stipulated, and the Company may run their embankment through the entire field, leaving four hundred feet on trestle work for the drainage.’ On the part of the defendant a great many witnesses were introduced, and opinions expressed by them, going to show that the tendency of the trestle work in its present condition is materially to obstruct the drainage, while a contrary opinion was expressed by those introduced on behalf of the Company. Now, if the tendency of trestle work, in any way or form in which it can be put up, is to obstruct the drainage of land at all, why, it may be asked, did the defendant consent that the trestle work should be placed there ? But having consented that it should be placed there, if injury has already resulted to him, or shall hereafter accrue to him, whether from the mode or manner of its construction or otherwise, the remedy is clearly by action for a breach of the stipulations.
“ The fifth item is for breaking up the pasturage, &c. For the protection of this portion of the premises, the Company is bound by the first stipulation in the agreement to erect cattle-guards at the fenbes which cross the track of the road; the fences are to be put up and kept in repair by the defendant. Nearly all the defendant’s witnesses testified as to the injury done to the pasturage by the Road, but those who testified' more particularly than the others, were Messrs. Sanders and Lariscy.
“ At the date of the agreement, the Road was not yet in existence; that is, it was not in running condition. Consequently none of the causes assigned by the witnesses for the breaking up of the pasturage, • such as the frightening of cattle, occasioned by the noise of the cars, the damage to stock, the necessity of employing additional stock-minders, &c., CQuld possibly have existed. If this be so, then it is manifest that whatever injury may have accrued, must have accrued since 'that period, and it must necessarily have accrued from one of two causes; that is, either from defective or improper fencing, — and which, by the way, devolves upon the defendant by the terms of the stipulation, — or from imperfect or insufficient cattle guards. If, on the latter, then it is clear the remedy is on the agreement.
“ The sixth and last item is for cutting the plantation in half, cutting off all canalling and future improvements, interrupting communication, &c.
“ To enable the defendant to keep up communication with the different parts of his plantation, provision is made by the twelfth stipulation, and is as follows: ‘ The proprietor of the land is to retain his right to all roads and avenues across the railroad trackand, to facilitate the crossings at the railroad, ramps are to be constructed by the Company. At the date of this agreement, I think it was stated by several of the witnesses, that the defendant had five roads. If the defendant did not think five roads sufficient to enable him to keep up communications with the different portions of his plantation, why, it may be asked, did he not insist upon a greater number? and is not the inference almost if not absolutely irresistible, that he considered five roads sufficient for all purposes of communication? But whether he considered five roads sufficient or not, his neglect or omission to insist upon having more than five, was not a matter proper to be passed upon by a jury empanneled to try an issue on an appeal from an award by commissioners.
“ My principal object in referring to these matters has been to show the vast amount of collateral and irrelevant matters that were introduced into this issue, and the equally vast amount of incompetent and irrelevant testimony that was introduced to sustain them. For example — look at the array of witnesses introduced on both sides, not with the view of proving damage to matters or things not included within the stipulations, nor with the view of showing the actual condition of the road at the date of the stipulations, and the injury that had accrued therefrom to things embraced within the agreement, but antecedent to its date. Eor it will be seen that many of these witnesses, for the first time in their lives visited the premises, some only a few months, others a few weeks, previous to the trial, and were brought forward to testify to the condition of the premises at the time of their respective visits.
“ I will now proceed briefly, and I may well add hurriedly, to notice the several grounds of appeal, and in doing so, shall take them up in the inverse order in which they are taken. I shall consider the fifth and sixth grounds together. If I had instructed the jury that the defendant could claim no damages except upon an action for a breach of the stipulations, all that would have been necessary for me to have done, would have been to have directed them to find nothing more than the value of the land taken for the site of the road. Among the first things I did, however, was to endeavor to explain to them the distinction between actual and speculative damages, and to admonish them that the former was the only kind of damages they could take into their consideration. All this would have been quite superfluous if I had expressed the opinion attributed to me. I then proceeded to take up the defendant’s claim for damages, item by item, and the corresponding stipulations. In regard to the second item, the damage to the three hundred and thirty acres of high land, I told' them that if any injury had accrued to the defendant from a defective culvert or insufficient ditches, since the date of the agreement, or if defendant should see proper to clear the land and bring it into cultivation, and damage should result to him from its defective drainage, his only remedy was for a breach of the stipulations.
“As regards the rice lands referred to in the third and fourth items, I told them that no merely speculative opinions as to the tendency of trestle work, or any other works, stipulated for by the Company, to, affect the drainage of the land could be taken into their consideration, but if any injury resulted therefrom, whether from imperfections in its structure or any other cause, the remedy was on the covenants.
“As regards the fifth and sixth grounds, I expressed to them similar views to those I have already expressed in a preceding part of this report.
“ After going over these several items in the way I have stated, I then told them that if in the testimony they could find proof of damage, actual, not speculative, to any thing outside of the agreement, or that had accrued anterior to its date, it was their province to award it.
“As regards the fourth ground, I did say to the jury that the defendant was at perfect liberty to have rejected the whole of the stipulations, and, like any other land owner, under similar circumstances, to have rested his claim to compensation upon the general law; that I was not aware of any thing in the charter of the road that authorized the Company to force stipulations upon the land owner.
“In answer to the third ground it is necessary to refer to the testimony of Mr. Hanckel, a witness examined in behalf of the Eoad. Mr. H. stated, in substance, that in December, 1855, being in the1 employ of the Eoad, he called upon defendant to make application for the land; defendant, he said, was very averse to the road’s passing through that part of his land, and said he would not take less than ten thousand dollars for it. In his cross-examination he stated that defendant said he would much prefer it should go on the. other side of the Savannah road; that if the Company would take that route he would give them the right of way, and also subscribe to the Eoad. As no other testimony had been offered by the Company, showing that any other demand had been made of defendant than that proved by Mr. Hanckel, I therefore thought the letter incompetent.
“ The second ground has also reference to the portion of Mr. Hanckel’s testimony above referred to. Mr. Hanckel, as we have seen, said that upon his demanding defendant’s land, the latter replied he would not take less than ten thousand dollars for it. Now the object of Mr. O’Bryan’s testimony, as I understood it, was to show that in a subsequent conversation with the President of the Road, the latter had stated that the defendant had offered, if the Company would take another route, to give the right of way, and subscribe ten thousand dollars. If the conversation between O’Bryan and the President had been in reference to Hanckel’s conversation with the defendant, the competency of the evidence offered would hardly admit of a doubt, but I did not so understand it. I am free to confess, however, that on the question in hand I have no settled opinion, one way or the other-.
“ As regards the first ground, my ruling was in conformity to what I supposed had been the practice on Circuit in similar cases.
“The jury found for the defendant four thousand seven hundred and twenty-five dollars.”
The respondent appealed, and now moved this Court for a new trial, upon the grounds:
1. Because it was erroneously ruled that the owner claiming damages is not the actor, and has not the right to open in evidence and argument.
2. Because his Honor erred in rejecting the testimony of Lewis O’Bryan, who was introduced to prove facts inconsistent with the evidence of one of the witnesses for the Road.
3. Because his Honor ruled that it was incompetent for the respondent to-introduce, in evidence, the letter of Mr. Blake, written in reply to the demand made upon him for his land by the Railroad Company.
4. Because his Honor erred in charging the jury that Daniel Blake, the proprietor, had the right to reject the conditions upon which the Bailroad Company demanded his land, and could insist that the road must take the fee simple without restriction.
• 5. Because his Honor erred in charging the jury that the stipulations covered every subject-of damage claimed by Mr. Blake, and that he could claim no damage except upon an action for breach of the stipulations.
6. Because it was proved by the Commissioners and by their award, that the damages assessed by them were upon the assumption thatthe stipulations of the Bailroad Company would be performed, and that .upon that assumption the plantation of .Mr. Blake was lessened in value by the sum of forty thousand dollars; but his Honor charged the jury that they could not assess the said damages or any part thereof.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
