Colquitt v. Howard

• Decision Date: 31 July 1852
• Docket Number: No. 66.,66.
• Citation: 11 Ga. 556
• Parties: W. T. Colquitt and others, plaintiffs in error. vs. John H. Howard, defendant in error.
• Court: Georgia Supreme Court

11 Ga. 556

W. T. Colquitt and others, plaintiffs in error. vs. John H. Howard, defendant in error.

No. 66.

Supreme Court of the State of Georgia

JULY TERM, 1852.

In Equity, in Muscogee Superior Court. Decision on demurrer, by Judge Iverson, May Term, 1852.

The questions decided in this case, arose from a demurrer to the bill filed by John H. Howard. The material allegations in that bill were as follows:

In 1840, the Mayor and Council of Columbus were authorized by an Act of the Legislature, to define the limits of Bay street, and to lay off a portion of said street and of the North Common, into water lots, and to dispose of the same. The lots were laid off, thirty-six in number, and one-half of them, viz: the even numbers, 2, 4, 6, &c. were, by deed dated in 1841, conveyed by the City Council to John H. Howard and Joseph Echols. One of the covenants in this deed was, that Howard & Echols should " erect a suitable, sufficient and well-constructed dam across the Chattahoochee river, terminating on the eastern bank, at any point on or above lot No. 1, &c. and to construct and form a safe and well-constructed canal or race, extending from said dam through all the said lots; said dam to be so high, and said canal or race to be so capacious, that when said river falls to the lowest height at which it usually stands in very dry weather, all the water of said river may, as it runs down, pass through said canal or race, and keep said dam or race in good repair, " the said lots and improvements, &c. to be liable for any damages which may arise from a failure to comply with this covenant.

In 1843, the City Council, by deed, conveyed all of the odd numbers of said lots (except No. 1,) to John H. Howard, individually, the deed containing the same covenant, with the former deed to Echols & Howard.

Immediately thereafter, Howard and Echols entered into an agreement, whereby Echols relinquished to Howard, his one-half interest in the lots first purchased, and in lieu thereof, accepted an interest of one-fourth in all the lots conveyed by both deeds. One undivided half of all the lots was afterwards sold to Farish Carter and John B. Baird, and one undivided fourth retained by Howard & Echols, each; Echols' portion being conveyed to one Jeter, as trustee for Echols—the truth being, as complainant believed, that Walter T. Colquitt, through Jeter, advanced the money necessary to carry on Echols' share of this work, and the title to the property remained in Jeter for the security of Colquitt; Echols all the while controlling and directing the work.

In 1845, Jeter, Carter, Baird and Howard, were incorporated by an Act of the Legislature, under the style of the " Water Lot Company of the City of Columbus." This charter, in a preamble, stated the history and condition of the Company, and then, " in order to enable the said Howard and his associates, owners of said water lots, to conduct their affairs, and to carryon their operations with greater facility, " enacted, that they be incorporated under the style aforesaid, and be " capable in law, to have, hold, purchase, receive, possess, enjoy and retain to them and their successors, lands, rents, tenements, &c. of whatsoever nature, kind or quality, the same may be, and the same to sell, grant, &c." together with the usual corporate powers of suing, having a seal, &c.

The 2nd section of the charter provided for a President and Board of Directors, and provided that " the death of one or more of the Directors or parties in interest, shall at no time, or in any case, prevent or hinder or delay a sale or sales of the said lots, or any of them, or an interest therein, by the survivors in the name of the corporation."

The 3d section conferred power on the President to make certain contracts, " not appertaining to real estate, or an interest therein."

The 4th section provided a mode for the authentication of the contracts of the corporation.

The 5th section imposes an individual liability upon the stockholders, and limited the indebtedness of the company to one-half its capital stock.

Section 6 was the usual repealing clause.

On 16th February, 1847, the Water Lot Company conveyed to Wm. Brooks, lot No. 15, also a lot of land adjoining the race, in which deed it was covenanted, that Brooks, his heirs and assigns should be confined and restricted to the privilege of erecting and running a saw mill, or saw mills, on said piece of land, and should use only the water allowed to lot No. 15. Subsequently, Brooks and one John G. Winter, (who was equally interested in the purchase,) in violation of this covenant, erected on the said piece of ground, a large wooden building, three stories and a half high, in which, in addition to their saw mill, they placed in operation a large quantity of machinery, viz: turning lathes, machinery for making buckets, pails, &c. &c. &c. To arrest this violation of the covenant, the Water Lot Company filed a bill to enjoin them from farther prosecuting this work, known as the " Variety Works." The injunction was refusedby the Circuit Judge, and upon a writ of error this judgment was affirmed in the Supreme Court, on the ground that an adequate remedy at Law was open to the company, and on account of the delay in filing the bill until the work had been completed. Since that decision, suits at Law have been commenced for a breach of this covenant, which suits are still pending. Nevertheless, Brooks & Winter, emboldened by the decision of the Court, immediately commenced to make and erect another large building, adjoining the one already erected, not with a view to use it as a saw mill, but in execution of their previous purposes in violation of their covenant. The bill charged, that this building being filled with combustible material, was a nuisance, and that Winter & Brooks had also erected a kiln or brickhouse, near the race or canal, and upon one of the lots belonging to the Water Lot Company, in which lumber was placed to dry, which kiln was also a nuisance, exposing to the danger of fire all the surrounding buildings.

The bill farther charged, that the Water Lot Company commenced an action of ejectment against Stephen M. Ingersoll and Wm. Ingersoll, to recover so much of all of said water lots as lies west of the middle of the main channel of the river; and also an action on the case for the waste of water from the dam on the west side of said river, which suits were still pending.

In 1850, Carter, Baird, Colquitt, and one Richard P. Spencer, purchased each from Brooks & Winter, one-fifth interest in the " Variety Works;" and also in a large quantity of lands lying on the Alabama side of the river and bounded on the east by the western lines of the said water lots, which was the land owned by Ingersoll, (and in virtue of which he claimed to the middle of the main channel of the river,) and sold by him to Brooks & Winter. In virtue of this purchase, Colquitt and his associates were to protect Ingersoll from Howard's interest, the suits by the Water Lot Company against Ingersoll, and the suits brought against Brooks & Winter were agreed to be settled without regard to complainant's rights or wishes. Farish Carter, in the mean time, transferred all of his interest in the Water Lot Company, to his two sons, Samuel N. and Benjamin F. Carter, who made to Walter T. Colquitt a power of attorney to act for them.

In March or April, 1851, the western wall of the canal erected by the Water Lot Company, was broken by the flood arising from the heavy rains at that time. The parties in interest held a meeting and agreed that the wall should be repaired, and an agent appointed to superintend its erection. Complainant supposed the repairs were going on, when he learned that there-pairs of the wall had been abandoned, and that Baird, and Colquitt acting for himself and as attorney for the Carters, assuming to be the Water Lot Company, together with Brooks and Spencer, the Howard Manufacturing Company, and the Eagle Manufacturing Company, (the two latter having purchased one nineteenth of the water power controlled by said canal, and having erected factories adjacent thereto,) contrary to the wishes of Howard, and without any order or resolution of the Water Lot Company, are now erecting a dam west of said canal wall, commencing at the west side of said wall, near its lower terminus, and running in a northwest direction at an angle of about 30 degrees from said western wall, until it reaches the dam running across the river—the effects of raising which dam would be, to render the repair of the western wall of the canal very expensive and troublesome, and to overflow a large portion of water lots, one-fourth of which belongs to complainant; to take away all power of shutting out the water from the canal; to injure and impair the value of the unsold lots, and in time of a flood would occasion a much greater quantity of trees and drift-wood to be deposited in said canal, to the damage of the whole property, and endangering the eastern wall of the canal. Another effect would be, to furnish those persons who have purchased lots increased water privileges without any compensation to the Water Lot Company, and to the injury of complainant's interest, in the unsold water powers and privileges; and also, to furnish the proprietors of the Variety Works increased facilities for floating logs through the canal, and also increased water power to such an unlimited extent as would forever protect the Variety Works from suits by the other companies for using more water power than, by their covenant, they were allowed touse. In the deeds conveying lots to the Howard and Eagle factories, the proprietors thereof covenant to bear their proportionate share of the expense of keeping up the walls of said canal. If the new dam is built, the bill charges that these proprietors will be relieved from this covenant.

The bill alleged that complainant has been the President of the Water Lot Company, ever since...