Jordan v. Neese

• Decision Date: 25 April 1892
• Citation: 15 S.E. 202,36 S.C. 295
• Parties: JORDAN v. NEESE et al.
• Court: South Carolina Supreme Court

15 S.E. 202

36 S.C. 295

JORDAN v. NEESE et al.

Supreme Court of South Carolina

April 25, 1892

Appeal from common pleas circuit court of Aiken county; KERRSHAW Judge.

Action by John Jordan against Idella L. Neese and John, A. Neese for injunction or partition. The complaint was dismissed. Plaintiff appeals. Reversed.

Henderson Bros., for appellant.

Walter Ashley, for respondents.

McIVER C.J.

The plaintiff and his mother-in-law, Mrs. Catherine A. McGrew being the owners of adjacent tracts of land, separated by the waters, of Dean swamp, on the 1st day of October, 1869, Mrs McGrew executed a appear, under her hand and seal, in the presences of two subscribing witnesses, of which the following is a copy: "Know all men by these presents that I, Catherine A. McGrew, *** for the love and affection I have and bear to my son-in-law, John Jordan. *** do give and release unto him so much land, at, along, below, and above the milldam, upon my land, known, by the name of the 'Mill's Old Dam,' and adjoining his, as will serve for the purpose of cutting a race, and for waste way and mill, all conveniences in putting up same, and lumber yards; also free ingress and egress to and from said mill or pond through my lands; and also of backing water upon my land to the height of thirteen feet live water; and all the privileges of said mill two thirds of the time, (reserving to myself one third part of said mill after paying one third part of whatever amount it may cost him, Jordan, in putting in operation said mill,) the same being situated of Dean swamp; *** the right of which I do thereby bind myself, my heirs, executors, and administrators, to warrant and forever defends unto the said John Jordan, his heirs and assigns forever, (reserving to myself the same privileges given and relinquished to him.)" Soon after the execution of this paper the plaintiff proceeded to erect a mill at a cost of something over $2,000, Mrs. McGrew giving her note to plaintiff for the amount agreed upon as here third of the expense incurred in erecting the mill. For a while the mill was used by the parties in accordance with the terms of said appear, the plaintiff having the exclusive use for two thirds of the time, and Mrs. McGrew the exclusive use for one third. After a time, however, they leased the mill to one Tyler for the term of ten years, the plaintiff receiving two thirds and Mrs. McGrew one third of the rent. Before the expiration of this lease it was surrendered, and subsequently the plaintiff and Mrs. McGrew divided the use of the mill as before, until the 9th of February, 1875, when Mrs. McGrew conveyed here interests to her daughter, Mrs. Holman, her husband, B. C Holman, and the defendant Idella L., who subsequently became the wife of the defendant John A. Neese; and the use of the mill continued to be divided as before between the plaintiff and these grantees of Mrs. McGrew, until the mill was destroyed by fire, some time in the year 1875. On the 8th of February, 1879, Holman and wife conveyed their interest in the mill to the defendant Mrs. Neese, in pursuance of a previous agreement to that effect; and on the 8th of July, 1878, thought prior to the last-mentioned conveyance, but subsequent to the agreement that the same should be made, an arrangement was made between the plaintiff and the defendant John A. Neese for the rebuilding of the mill, in which said John A. Neese undertook to convey to the plaintiff: "For and in consideration of the copartnership of putting up or rebuilding a saw mill in the mill's old dam, on Dean swamp, with John Jordan, and the keeping up in a navigable condition the wasteway therein, do give and grant to the said Jordan privilege of backing water on our land to the height of ten feet live water, ingress and egress through my land to and from said mill and pond, so as not to damages any lands now in or may hereafter be put in cultivation; or shall he be required to use or open a road that will throw him out of a direct course to said mill pond more than four hundred yards, and the right of using the most convenient soil or dirt, in keeping, up said milldam, and filling up around said mill and waterway, the use of lumber yard two thirds of the time, the same being his time of using said mill;" and on the same day the plaintiff, by his deed to the said John A. Neese and wife, in consideration of said copartnership, conveyed to them the same privileges, with the same reservations, in his land. In pursuance of this arrangement the mill was rebuilt, and continued to be used by the...