Gooch v. Elliott

• Court: South Carolina Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Gooch v. Elliott, 120 S. C. 245, 113 S. E. 72 (S.C. 1922)
• Decision Date: 19 July 1922
• Docket Number: 10948.
• Parties: GOOCH v. ELLIOTT ET AL.

113 S.E. 72

120 S.C. 245

GOOCH v. ELLIOTT ET AL.

No. 10948.

Supreme Court of South Carolina

July 19, 1922

Appeal from Common Pleas Circuit Court, Cherokee County; Edward McIver, Judge.

Action by A. W. Gooch against R. L. Elliott and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded with directions.

G. W Speer, of Gaffney, for appellant.

Butler & Hall, of Gaffney, for respondents.

PER CURIAM.

Upon a consideration of the petition for a rehearing it is ordered that the opinion heretofore filed in this case be withdrawn and that the following be substituted therefor:

Action for damages on account of the alleged unlawful entry and trespass upon the lands of the plaintiff, and removing therefrom large quantities of top soil.

It appears that the plaintiff owned a lot of land in the town of Blacksburg, adjacent to a county highway that was under process of construction by the Cherokee county highway commission. In the former opinion the court made the statement that the defendants were independent contractors engaged in constructing the highway for the county commission. Exception is taken in the petition for a rehearing to this statement. The court was induced to make that statement upon the allegation in the answer of the defendants:

"That at the times mentioned in the complaint the defendants were under a contract with the Cherokee county highway commission to construct or top-soil a portion of the National Highway"

- -and upon the testimony of the engineer and of the defendants that such was the relation. The engineer designated the defendants time and again as "contractors," and the defendant Jack Elliott testified:

"We had a contract to top-soil the National Highway through Blacksburg."

But, as respondents' attorneys earnestly insist that that relation was not a conceded fact in the case, particularly in view of the ruling of the circuit judge, unappealed from that the defendants were acting as agents of the commission, that question will remain open for determination on the next trial.

The commission, although authorized to do so by the act of their creation, took no steps to condemn the top soil upon the plaintiff's land, but through their engineer directed the defendants to enter and remove such of the top soil as was needed.

Upon motion of the defendants a verdict was directed by the court in their favor, and the plaintiff appeals.

We think...