Smith v. Bivens

• Decision Date: 19 May 1893
• Citation: 56 F. 352
• Parties: SMITH v. BIVENS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

56 F. 352

SMITH v. BIVENS et al.

United States Circuit Court, D. South Carolina.

May 19, 1893

A. D Cohen, for complainant.

C. C Tracy, for defendants.

SIMONTON District Judge.

The complainant is the owner of about 8,000 acres of land, in one body, in Colleton county, in this state. The land is valuable for grazing purposes, and beyond this has little value. Complainant has been using it for such purposes, and has been in the enjoyment of an income therefrom, derived from a per capita royalty paid by owners of cattle placed in this pasture. When he purchased this property the law of South Carolina required all owners of cattle and stock to keep them fenced in, and, in case they strayed on the lands of others gave to the owners of such lands the right of distraining and impounding them. No proprietor was required to fence his lands used for any purpose but pasture, and the provisions of the law protected him from trespass. In December, 1891, the general assembly of South Carolina passed an act to exempt certain territory in Colleton county from the operation of this law. Under the provisions of the act some 32,000 acres in which territory was embraced this land of complainant, were exempted from the provisions of the general law. The complainant was thus compelled either to build a substantial fence around his whole tract, of a character to keep out cattle, hogs, and other stock, or his lands could be grazed upon by the cattle and stock of any person who chose to turn them out. The defendants are cattle and stock owners, neighbors of the lands of complainant, and anterior to the passage of the act in question had used the privilege of grazing on the lands of the complainant, and had paid the per capita royalty charged therefor. They were notified during the year 1891 of the intention of the complainant to increase the royalty per head, and one and all declined to pay it, or to contract on those terms. Nevertheless, since the passage of the act, their stock and cattle have been at large, and have constantly trespassed upon this land of the complainant. This, perhaps, could not be prevented in any other way than that provided in the general law; that is, by fencing in the stock and cattle, and not permitting them to run at large.

The bill is filed to protect the complainant in the complete possession and use of his own land. It charges that the defendants were largely instrumental in procuring the passage of the act of the legislature above referred to, and that they are protected under the color of that act; that he has no remedy at law to meet his case; and that an attempt to seek such a remedy would involve him in a multiplicity of suits. He charges that the said act violates the provisions of the constitution of the United States, and is null and void. The prayer is for an injunction. The answer denies the principal allegations of the bill, admits the passage of the act of the general assembly referred to in the bill, and maintains that it is not in conflict with the constitution of the United States. Especially, it challenges the jurisdiction of the court, as well its jurisdiction as a court of the United States as its jurisdiction as a court of equity. These questions must be first disposed of.

It is contended that this court has not jurisdiction because the matter in controversy does not exceed in value the sum of $2,000, exclusive of interest and costs. The complainant avers that the testimony sustains the averment that the land is valuable as grazing or pasture land only. It further appears that the complainant has been using it for this purpose, and that the realized in one year at least $500 for its use. This was due simply to the fact that he could control the grazing on his own land. Until the passage of this act he could exercise his control. Since its passage he has lost it, and with it his income. Capitalized, this income is 4 per cent. on $12,500, 4 1/2 per cent. on $12,000, 5 per cent. on $10,000, 6 per cent. on $8,333, and 7 per cent. on $7,100.

Let us look at it from another point of view. The land of complainant was purchased by him solely for grazing and pasture purposes. It has value for this purpose, and none other. The testimony shows that this is the general character of the land in this vicinity, and that the land of complainant is specially valuable for this purpose. The act of the legislature destroys the control by complainant of his property for this purpose, and to this extent impairs its value. The land contains 8,000 acres. The value of the land in that neighborhood, as shown by the testimony, is not less than 33 cents per acre, that is to say at least $2,640. This is the matter complained of, and measures the injury for which complainant seeks redress. The case comes within Railroad Co. v. Ward, 2 Black, 492, or as it is stated in Railway Co. v. Kuteman, 54 F. 552, in a suit for an injunction, the amount in dispute is the value of the object to be gained by the bill.

Another objection set up in the answer by way of demurrer is that the bill and answer, with the testimony, show that no federal question is involved, and that parties on both sides are citizens of the same state. The bill charges that the act of the general assembly, 22d December, 1891, is unconstitutional, null, and void, in that it deprives the complainant of his property without due process of law; that it denies to him the equal protection of the law, as given to the rest of the citizens of this state; that it impairs the contract entered into with complainant; that it lessens and affects and impairs the value of complainant's land without due compensation; and that it subjects the property of complainant to the use and benefit of defendants and the public without compensation. The defendants, in argument, deny that the act of the general assembly is used by them as a shield for their protection, or that they invoke the same. They insist that the only difference between them and complainant is this. They admit his right to charge them for the use of his land, and they find themselves unable to pay the increased charge which he has made. The bill alleges that the act of the general assembly protects the defendant, and that it is unconstitutional, null, and void. The answer denies that it is unconstitutional, and made this a distinct issue in the pleadings. Beside this, under the law, as it stood before the passage of the act, the owner of stock was compelled to keep them in so that they could not trespass on lands of others. For doing this they were exposed to certain action on the part of the landowner. The act in question repealed all this, and the landowner trespassed upon had no remedy. Indeed, the action of the stock was no longer a trespass. The purpose...