Duke v. Postal Telegraph Cable Co.

• Decision Date: 14 March 1905
• Citation: 50 S.E. 675,71 S.C. 95
• Parties: DUKE et al. v. POSTAL TELEGRAPH CABLE CO.
• Court: South Carolina Supreme Court

50 S.E. 675

71 S.C. 95

DUKE et al. v. POSTAL TELEGRAPH CABLE CO.

Supreme Court of South Carolina

March 14, 1905

Appeal from Common Pleas Circuit Court of Chester County; Gage Judge.

Action by Alice Duke and others against the Postal Telegraph Cable Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

The following statement is set out in the record:

"In January, 1903, appellant constructed a telegraph line through the land of one Perry Duke, in Cherokee county without having obtained from the said Perry Duke a permit so to do. A suit was brought by Perry Duke in January, 1903, for damages for an unlawful construction of the said line. The cause came on for trial before Hon. Chas. G Dantzler at the March term of court, 1903, of the court of common pleas for Cherokee county. After the reading of the complaint, the defendant interposed an oral demurrer that the complaint did not state facts sufficient to constitute a cause of action, on grounds hereinafter named. The demurrer was sustained, and complaint dismissed, without leave to amend. From order sustaining the demurrer there was no appeal.

Subsequently Perry Duke died intestate, leaving as his heirs at law his wife, one of the respondents herein, and his children, the other respondents herein. About the 1st of September, 1903, the said heirs at law began an action for damages against the appellant for the construction of its telegraph line through the lands of the said Perry Duke, deceased, the preceding January, alleging willfulness, wantonness, and high-handed conduct on the part of the defendant; and, as the appellant claims, it was the same cause of action as that upon which the demurrer was sustained in the case of Perry Duke v. the appellant, supra. The cause came on for a hearing at the March term, 1904, of the court of common pleas for Cherokee county. After reading the complaint in conformance with previous notice, the appellant moved for a stay of hearing of the cause until the cost on the case of Perry Duke against the telegraph company should be paid. After hearing argument therein, the circuit judge ordered that the hearing of the case be stayed until the cost of the case of Perry Duke should be settled, whereupon attorney for respondents

consented to pay the cost in the previous case as taxed. At this point, attorney for appellant, in conformance with previous notice, interposed an oral demurrer and motion to dismiss the said suit on grounds mentioned in motion papers, a copy of which is hereinafter set out. The motion to dismiss and the oral demurrer were overruled, and the cause ordered to trial. The defense of the appellant was a general denial; a permit from the wife of the former owner of the land, who now has one-third interest therein; the entrance under the said permit; and the equitable defense that by reason of the execution by Alice Duke, one of the respondents herein, who now owns one-third undivided interest in the said land, and who was at the time of the execution of the permit the wife of the former owner, that the land should be partitioned, and the line of the appellant, poles and wires, set off on the portion allotted to the respondent, Alice Duke.

By consent of counsel, the equitable and the legal issues were heard together. At the trial of the said cause the judge submitted certain questions of fact to the jury for its enlightenment. The jury found a verdict in favor of respondent in the sum of $200. Judgment was entered thereon, and notice of appeal given. The judge on the 3d day of June filed his decree overruling the equitable defense, from which decree notice of appeal was duly given."

J. C. Jeffries, for appellant. Hall & Willis, for respondents.

GARY A. J., after the foregoing statement of facts, delivered the opinion of the court.

The first exception is as follows: "It is respectfully submitted to the court that his honor erred in not sustaining the first ground of oral demurrer, which is as follows: 'Because it appears on the face of the complaint itself that the plaintiff had no legal capacity to sue.' The error complained of being that an action of this kind does not survive to the heirs at law of a deceased person." There are two reasons why this exception cannot be sustained: In the first place, such objection cannot be interposed on what is called an "oral demurrer at the trial," under subdivision 6, § 165, of the Code 1902. Dawkins v. Mathis, 47 S.C. 64, 24 S.E. 990. In the second place, the right to sue is conferred by section 2859 of the Code of Laws of 1902, which provides that "causes of action for and in respect to any and all injuries and trespasses, to and upon real estate, shall survive both to and against the personal or real representative (as the case may be) of deceased persons," etc. The heirs at law are the real representatives.

The second exception is as follows: "That it is respectfully submitted that his honor erred in not sustaining the second ground of oral demurrer, which was as follows: 'Because the complaint does not state facts sufficient to constitute a cause of action, in that statute provides a way for procuring compensation in such cases as this by the landowner, and that the statutory remedy must be pursued.' The error complained of being that this should have been a suit for compensation under the statute, and that his honor erred in not so holding it to be, and in not holding that the statute for compensation should have been plaintiff's remedy." Section 2211 of the Code of Laws of 1902 provided that "any telegraph *** company incorporated under the laws of this or any other state, upon complying with laws of this state regulating foreign corporations, and by becoming a domestic corporation, may construct, maintain and operate its line *** on, over, and under the land of any person *** in this state. *** Provided, *** just compensation is first paid such land owners *** for such right and privilege, to be ascertained in the manner hereinafter provided for." Section 2212 makes provision for condemnation proceedings. The complaint alleges that the defendant is not a domestic corporation under the laws of this state. If the defendant was not a domestic corporation under the laws of this state, then it did not have the right and privilege to make entry upon the land under condemnation proceedings.

The third exception is as follows: "It is respectively submitted that his honor erred in not sustaining the third ground of oral demurrer, which was as follows: 'In that the complaint fails to show that, before the entry was made, the plaintiff signified in writing his refusal to consent to such entry.' The error complained of being that the defendant had no notice of objection from the plaintiffs or their intestate to defendant's line crossing the said property." This exception is disposed of by what was said in considering the second exception.

The fourth exception is as follows: "Because his honor erred in not dismissing the complaint on the last two grounds of oral demurrer above stated, and in not sustaining the order of his honor Judge Chas. G. Dantzler, passed at the March term, 1903, of the court of common pleas for Cherokee county in the case of Perry Duke, plaintiffs' intestate, against the defendant, for the same cause of action; said order of Judge Dantzler being based upon the said last two mentioned grounds of oral demurrer. The error complained of being that the order of Judge Dantzler made the issues as between the plaintiffs, the plaintiffs' intestate, and this defendant res judicata, and his honor should have so held, the said order being unappealed from." The complaint in the case of Perry Duke against the defendant alleges that it was a corporation organized under the laws of the state of New York, but did not allege that it was not a domestic corporation under the laws of this state. That complaint also alleged that "the said corporation, by virtue of its charter and the laws of the state of South Carolina, is now constructing a telegraph line," etc. Also "that the defendant entered upon the lands of the plaintiff after repeated notice from plaintiff not to do so, and against the wish and protest of plaintiff." The present complaint alleges the organization of the defendant as a corporation under the laws of the state of New York, and that it is not a domestic corporation under the laws of this state. It likewise alleges "that during the month of January, 1903, the defendant, without giving the said Perry Duke notice in writing or otherwise that it required a right of way through said premises, or that it would enter upon said premises for any purpose, without giving said Perry Duke thirty days or any opportunity whatever to signify his refusal or consent in writing to the entry of defendant upon said premises, without agreeing with him upon any compensation for such right of way or entry, without paying him any compensation for such right of way or entry, but without notice to the said Perry Duke, and without any knowledge on the part of Perry Duke that defendant required a right of way through said premises, and after assuring him that the defendant had no intention to enter upon said premises, and without taking any steps to condemn a right of way through said premises as is required by law, and against the notice, consent, and protest of the said Perry Duke, and denying...