Zimmerman v. American Tel. & Tel. Co.

• Citation: 51 S.E. 243,71 S.C. 528
• Parties: ZIMMERMAN v. AMERICAN TELEPHONE & TELEGRAPH CO. [a1]
• Decision Date: 15 February 1904
• Court: United States State Supreme Court of South Carolina

51 S.E. 243

71 S.C. 528

ZIMMERMAN v. AMERICAN TELEPHONE & TELEGRAPH CO. ^[a1]

Supreme Court of South Carolina

February 15, 1904

Appeal from Common Pleas Circuit Court of Spartanburg County Townsend, Judge.

Action by E. J. Zimmerman against the American Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ralph K. Carson, for appellant. D. E. Hydrick and Johnson & Nash for respondent.

JONES J.

The plaintiff brought this action against defendant for damages to his lot in the town of Duncans, Spartanburg county, by reason of defendant's construction of its telegraph lines over the same, which resulted in a judgment for $300 in plaintiff's favor. The defendant sought to justify its action in the premises under the instrument executed by plaintiff, which is as follows:

"$100. Received of the American Telephone and Telegraph Co., of South Carolina, one dollar in consideration of which I hereby grant unto said company, its successors and assigns the right to construct, operate and maintain its lines over and along the property which I own or in which I may have any interest, in the township of Beech Springs and town of Duncans, county of Spartanburg, State of South Carolina, including necessary poles and fixtures along the roads, streets or highways adjoining the property owned by me in said town, said sum received in full payment for such right, and in full satisfaction for the trimming of any trees along said lines necessary to keep the wires cleared at least eighteen inches, and with the right to set the necessary guy and brace poles, and attach to trees the necessary guy wires. Any damage done to crops in construction or repairing said lines to be paid by the said company.

Witness my hand and seal, this 9th day of May, A. D. 1901, at Duncans, S. C."

In the complaint plaintiff alleges that said agreement was signed with the distinct understanding that only one pole was to be placed on said land, and at a different part of the lot from where the line was constructed, and at a place where the wires and poles would not interfere with the lot for building purposes, and plaintiff offered parol testimony to show the same. To this defendant objected on the ground that it tended to vary the written instrument above. The court admitted the testimony, and to this ruling in various forms the first seven exceptions are directed. The remaining exceptions charge error in the construction of said instrument.

In construing the instrument the court charged the jury that it was silent as to the location and number of poles. This charge is not wholly free from error, but the error was not prejudicial to appellant, as we construe the instrument. The instrument does not give the defendant an unrestricted right to construct its line upon any part of plaintiff's lot. Observe the language: "To construct, operate and maintain its lines over and along the property, *** including necessary poles and fixtures along the roads, streets or highways adjoining the property." Such contracts are to be construed in the light of the circumstances. The lot in question was in the town of Duncans, fronting on Main street 172 yards and on Welford street 120 yards. The right was not given to construct the lines...