Epting v. Lexington Water Power Co.

• Decision Date: 12 August 1935
• Docket Number: 14125.
• Citation: 181 S.E. 66,177 S.C. 308
• Parties: EPTING et al. v. LEXINGTON WATER POWER CO.
• Court: South Carolina Supreme Court

181 S.E. 66

177 S.C. 308

EPTING et al. v. LEXINGTON WATER POWER CO.

No. 14125.

Supreme Court of South Carolina

August 12, 1935

Appeal from Common Pleas Circuit Court of Lexington County; T. S Sease, Judge.

Action by W. M. Epting and others against the Lexington Water Power Company. Judgment for plaintiffs, and defendant appeals.

Reversed with instructions.

George Bell Timmerman, of Lexington, for appellant.

Herbert & Dial, of Columbia, and McKendree Barr, of Leesville, for respondents.

BAKER Justice.

On February 12, 1903, D. L. Epting conveyed to L. I. Guion for the express consideration of $100, a tract of 1 1/4 acres of land in Lexington county whereon was situate at the time his mill and gin that were run by water power from the Saluda river on which the lot fronted. Immediately after the description the following was inserted:

"It is expressly stipulated and agreed that as soon as it becomes necessary to have my mill and gin houses now situated upon said premises removed therefrom, the said L I. Guion, his heirs or assigns, shall pay me an additional sum of one hundred and thirty dollars, and shall furnish me eighteen electrical horse power to operate said mill; and the said Guion or his assigns shall have the right and privileges of removing same mill and gin and re-erect the same on my premises in said county and put the same in as good condition as it is in before it is removed and shall furnish appliances and eighteen electrical horse power to me for the purpose of operating the same, but in case the said Guion or his assigns should prefer to have me remove and re-erect said mill and gin, then the said Guion or his assigns are to pay me an additional sum of six hundred and thirty dollars for re-erecting and removing said mill and gin upon my premises, and it is to furnish me with eighteen electrical horse power at the power house to operate said mill and gin.

Provided that I am to have the use of the mill, gin and premises hereby conveyed, until the said Guion or his heirs or assigns require me to remove the same.

Together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonging, or in anywise incident or appertaining."

The habendum is regular, the warranty general, and at the end of the deed, without witnesses or probate, appears: "I hereby accept the foregoing deed and the stipulations therein contained. L. I. Guion."

The operation of the entire plant was discontinued and the building removed by or before the year 1916 when the mill and dam went into disuse; and all that remained of the former mill was sold by the administrators of the estate of D. L. Epting shortly after his death in 1923. The Lexington Water & Power Company purchased from Guion (Epting's grantee) about 1926, but made no use of the 1 1/4 acres so transferred until 1929 when this tract and thousands of other acres were overflowed to form Lake Murray, one of the largest water power developments for the generation of electric current in the world; the power house for such project being situate about 15 miles from the location of the mill and gin lot. No gin or mill has replaced the old one. In the spring of the year 1933, this action was commenced by the plaintiffs, the only heirs at law of D. L. Epting, they having administered his estate, paid all his debts, and obtained their discharge on October 15, 1924.

The complaint alleged in substance the facts before narrated; that the plaintiffs are the owners of all rights and interests formerly of D. L. Epting; that the mill was moved by D. L. Epting or his heirs and no sum has been paid to either; and that they are entitled to (a) $630 for its removal, (b) the delivery of eighteen horse power and necessary appliances for its use, and (c) the value of eighteen horse power from the date of the electrical output at Saluda Dam to the present time; basing their claim on the allegation that the stipulations in the deed hereinbefore set out are covenants that are appurtenant to, and run with, the land conveyed.

The last is the gravamen of this action.

Upon the trial of the case, the facts having been proven as before set out, that all of the lands of D. L. Epting had been sold, the heirs purchasing, and that one such tract now owned by Mrs. J. N. Ham, a daughter of D. L. Epting, situate about 2 miles from the mill and gin site, was the place at which the plaintiffs demanded delivery of the eighteen horse power, the circuit judge directed a verdict for the plaintiffs as follows: "We find for the plaintiffs eighteen electrical horse power to be delivered to the plaintiffs on the premises of Mrs. J. N. Ham, in Lexington, within two miles of the original site, and $56.00 per year per horsepower on eighteen horsepower from 31st of December, 1929, to date of commencement of delivery."

Obviously, so much of the judgment as gives damages for nondelivery of the power before plaintiffs themselves had offered to connect with the power house, and before they could even use such power, is contrary to any possible construction of the contract.

"In the performance of covenants, it is a maxim, that he who prevents a thing from being done, shall not avail himself of the nonperformance; and where there are reciprocal duties to be performed by the parties he who alleges a breach ought to shew he was always ready and willing to perform what he was obliged to do; otherwise he shall not be permitted to come into court and take advantage of his own laches or neglect." Syllabus to Fannen v. Beauford et al., 1 Bay, 235 (1 S.C. Law, 235).

Nor can that portion of the verdict possibly stand where the defendant is required to deliver the current "on the premises of Mrs. Ham"; the stipulation in the deed being express that such delivery (if the provision thereabout is binding upon the assignee as a covenant running with the land) shall be "at the power house."

"That it was the duty of the court to construe the written contract and to interpret and declare its meaning if the language used was susceptible of only one reasonable signification, there can be no question. That the agreement of the parties is to be ascertained from the plain language employed by them, and that such agreement is to be enforced, no matter what the intention may have been, is equally well settled. 6 R. C. L. 841, § 231. But that rule is not to be pushed to the length of requiring that by its operation 'the general intention of the parties, as evidenced by the contract itself, shall be frustrated or perverted either in whole or in part.' 'The terms employed are servants, and not masters, of a perspicuous intent; they are to be interpreted so as to subserve, and not to subvert, such intent.' 6 R. C. L., 841, § 231; Chism v. Schipper, 51 N. J. Law, 1, 16 A. 316, 2 L. R. A. 544, 14 Am. St. Rep. 668." Breedin v. Smith et al., 126 S.C. 346, 120 S.E. 64, 67.

While more cases are to be found in our courts involving realty and the limitations of estates than, perhaps, on any other subject, there are very few on the question of covenants running with the land as presented by this appeal. In the case of Hammond v. P. R. & A. R. Co., 15 S.C. 10, it is said, ""Covenants running with the land are covenants which bind the grantor. This is not a deed of indenture, but is a deed-poll, signed by the grantor alone, and how can the stipulations in this deed be made the covenants of the grantee? If Hammond had intended to rely for his protection upon a covenant by the grantee, would he not have taken a second instrument, properly prepared and executed?"

The deed under consideration in the Hammond Case was construed by the court, however, as one upon condition subsequent, so this quoted statement is obiter and not controlling, having evidently been made upon the authority of Spencer's Case, 5 Coke, 16a, and if a written, formal acceptance were now necessary to bind the grantee, it could not here be charged because Guion's agreement was neither witnessed nor probated as required by law and could afford no notice. Watts v. Whetstone, 79 S.C. 357, 60 S.E. 703.

In the case of Dawson v. Western Maryland R. R. Co., 107 Md. 70, 68 A. 301, 303, 14 L. R. A. (N. S.) 809, 126 Am. St Rep. 337, 339, 15 Ann. Cas. 678, the language used by the court of last resort, relative to the effect of covenants arising out of a deed-poll, is as follows: "The acceptance of a deed poll cannot have the effect in this state of binding a grantee as a covenantor. It is said in 8 Am. and Eng. Ency. of Law, 65, in speaking of the exceptions made in New York and New Jersey to the general rule, that in order that a provision be binding as a covenant it must be under the seal of the party by whom it is to be performed, 'But this exception has been justly criticized as erroneous in principle, and will be found to be unsupported by the authority of any adjudged cases, except those rendered in the states above mentioned which have adopted them. It may safely be stated as the general rule that mutual covenants cannot arise out of a deed poll." D' (Italics added.) The case on the subject of covenants running with the land to which all others point is known as Spencer's Case, 5 Coke, 16a, 15 E. R. C. 233, wherein Spencer demised a house and lot to S for years. "S covenanted for himself his executors and administrators, that he, his executors, administrators, or assigns, would build a brick wall on part of the land demised, S assigned the term to J, and J to Clark. Spencer sued Clark for breach of the covenant to build the wall. The court by the first resolve held that a covenant bound the assignee only when it was concerning a thing in esse, parcel of the demise, not when it related to a wall to be built. By the second resolve, they...