Meetze v. Charlotte, C. & A.R. Co.
| Decision Date | 22 April 1885 |
| Citation | 23 S.C. 1 |
| Parties | MEETZE v. CHARLOTTE, COLUMBIA & AUGUSTA R. R. CO. |
| Court | South Carolina Supreme Court |
1. Where the report of the referee, including the testimony taken with his conclusions of law and fact, and the exceptions taken to the report, are all submitted to the Circuit Judge, it is not in terms the required by the code (§ 294), but it is substantially a compliance with the requirements of the law.
2. Where there is a consent order of reference in a law case of all the issues to be heard and determined by the referee, the Circuit Judge has the power to review the referee's findings of fact as well as his conclusions of law, and upon such review to affirm, modify, or reverse them.
3. Where a party is entitled to a trial by jury the cause cannot be referred without his consent; but his consent to a reference involves his consent to all the incidents of a reference, one of which is that the report of the referee, on exceptions taken, may be reviewed and affirmed, modified, or reversed.
4. Licenses, revocable and irrevocable, considered and defined.
5. Where the license is a power coupled with an interest of a permanent character, it is irrevocable; and if the interest be an interest in land, and the contract be by parol only the Court of Equity will hold the contract binding, where the licensee has incurred trouble and expense in carrying out such contract.
6. Thus, where a railroad company, for certain privileges, was permitted by parol to construct upon the plaintiff's land a dam, a canal, and a water-wheel, for the purpose of keeping its tank supplied with water, the license was irrevocable and might be enforced in equity notwithstanding the statute of frauds.
7. And this special contract being valid and therefore of force, the plaintiff, upon the withdrawal by the railroad company of such privileges, could not bring action for the value of the use and occupation of the land, but only for damages for breach of the special contract.
Before ALDRICH, J., Lexington, September, 1883.
This was an action by Henry A. Meetze against the Charlotte Columbia & Augusta Railroad Company, commenced in August, 1881. On February 22, 1883, Judge Hudson passed the following consent order: " Ordered , That all the issues arising in this cause be and they are hereby referred to William J. Assmann, Esquire, to hear and determine the same." The reference was held in August, and the report filed in September, of the same year. Upon exceptions to this report, taken by the defendant, the cause was heard before his honor, Judge Aldrich, who subsequently filed the following decree:
The report and exceptions were called for a hearing at the fall term of Lexington court, when, by the joint request of the attorneys for the plaintiff and defendant, I made the following entry in the calendar: " To be heard in Columbia by agreement of counsel made in open court." Subsequently, at the fall term of the court for Richland, the case was called for a hearing.
In limine , objection was made that there had been no " case settled ," and I could not hear the cause. I ruled that the defendant, having furnished the court with all the papers in the cause copied by the referee, who is also the clerk, this was sufficient; that in all cases where a " case" is necessary the party may waive a " case" and present all the papers, provided, as in this cause, the testimony and other proceedings are in writing.
The pleadings were read by the plaintiff's attorney at the request of the attorney for the defendant, including the testimony and all the papers in the cause. After the reading the plaintiff objected to my jurisdiction, on the ground that the remedy of the defendant was to appeal directly to the Supreme Court, and that the findings of the referee had the force and effect of a special verdict which could not be reviewed by the Circuit Judge. I ruled that the appeal from the referee to the Supreme Court was in accordance with the New York practice, which clothed the referee with the power of a court; that this could not be recognized under our constitution, which vested all judicial power in the courts therein named; that I had never heard of a judgment being entered in our State upon a referred report in invitum , nor of the Supreme Court hearing an appeal directly from a referee; that whether this court would or would not have the power to pass upon a " special verdict," the finding here was certainly not a special verdict, for it not only reported the testimony but also the referee's deductions therefrom and his findings of law; that whet the referee called findings of fact were for the most part mixed findings of law and fact , hence his report could not be regarded as a " special verdict" without violating the definition given in the code, to wit: " A special verdict is that by which the jury find the facts only , leaving the judgment to the court." I further held that those sections of the code copied from the New York code, and which gave power to enter up judgment upon the report, or appeal directly therefrom, had been, in whole or in part, stricken out before the order of reference in this case was made (§§ 296, 302, code of 1870). The attorneys in the cause were directed to proceed with the argument.
**2 During the argument the point was made how far this court could go in consideration of the report and exceptions, it being an action at law referred to a referee with power to pass upon all the issues. In my opinion, there being only two modes of trial in this court, by the court with a jury, and by the court without a jury, the consent order of a reference of all the issues to a referee was a waiver of a trial by a jury, and a submission of all the issues of law and fact decided by the court, the same having been first passed upon by the referee, who should, as in this cause he states he does, make his report " to the honorable the Court of Common Pleas." It then becomes the province of the court to take the testimony as reported, and to give due consideration to the referee's findings, without being bound by any. When the referee has found a matter of fact, purely and simply, not a deduction from facts proved, or a conclusion from applying the law to a fact proved, or what is called a mixed finding, such as a finding of " due diligence," " reasonable notice," or " negligence," as I have frequently said, I will, without some very good reason exists to overrule him, sanction his findings.
I now proceed to consider the case on its merits, as presented by the referee's report and all the papers in the cause. In 1874 the defendant railroad, at its Lexington station, with the consent of the plaintiff, built a dam to increase the head of water in a stream at that place, near its track, to run a water-wheel to force water into a tank, and also dug a ditch, some 150 yards long, to carry off the water. A portion of this dam, the whole length of the ditch, and the water-wheel are on the plaintiff's land. The defendants expended money in that construction. The dam was constructed, the ditch dug, the water-wheel built, and the tank placed with the knowledge and consent of the plaintiff, he then being the agent and local attorney of the defendant. The defendant has been using this water-power up to and since action brought.
Without doubt this tank has been of great benefit to the railroad company. It has furnished a never-failing supply of water to its engines, and saved the expense of employing a pump hand at this point. The plaintiff, in his testimony, says he was induced to grant this privilege on his land because as depot agent and local attorney he was permitted to ride on the defendant's trains free of charge and receive family supplies at half rates, a privilege he had been enjoying before the works were constructed and which all of the depot agents enjoyed. I see nowhere in the evidence that the plaintiff claimed these privileges in consideration of the water-power, or that he has ever even alluded to it until his letter to Mr. President Palmer. This employment as local attorney was a separate engagement, for which he says he was liberally compensated, and doubtless produced good will toward the defendant. This employment of depot agent the plaintiff terminated himself, and his only complaint now is that the free pass has been withheld.
**3 The evidence discloses that this free pass has been extended, except for a short time, to Mr. Meetze as a member of the legislature; but he says that he did not willingly receive them in that capacity. Great light is thrown upon this transaction, I think, in a letter written by plaintiff, which I give in full:
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