Opinion
12581
February 8, 1929.
Before FEATHERSTONE, J., Greenwood, July, 1928. Affirmed.
Action by John B. Sloan and others, constituting the Greenwood Highway Commission, against L.B. Burnett and others. From an order referring the case to a Master to hear testimony and pass on all issues of law and fact and report it to the Court, defendants appeal.
Following is the order of reference referred to in the opinion:
"ORDER OF REFERENCE"This is a motion by plaintiffs for an order of reference. Defendants resist on the ground that they are entitled to a jury trial, as a matter of right.
"The plaintiffs allege that they acquired from the defendants the right of way described in the complaint; that since that time the defendants have erected thereon a building which obstructs and makes dangerous travel on the highway; that said building was completed and is being used against the objection of plaintiffs. Plaintiffs seek a mandatory injunction for the removal of the obstruction, together with damages.
"Defendants admit the purchase or condemnation of the right of way, deny any damages, allege that they own the fee in the land and are using it in a manner not inconsistent with the easement, as they have the right to do. They also allege that the building was put where it stands with the consent of the highway authorities.
"At the very threshold the Court is met with the question as to whether or not the cause of action is one at law or in equity; the defendants contending the former and the plaintiffs the latter.
"I am of the opinion that the action is one in equity, the plaintiffs seeking the aid of that Court for the removal of the obstruction, and as incidental thereto damages for the erection of the obstruction.
"But this holding is not decisive of the question to be determined, for, if there is a question of title to real estate involved, whether raised by the complaint or the answer, by estoppel or otherwise, that question must go to a jury.
"At first blush, I was inclined to hold that defendants are seeking to show title by estoppel, but a more careful scrutiny of the answer shows that such is not the purpose; their object in pleading that the obstruction was put there, with consent of the authorities, is to negative willfulness and wantonness, and further and principally to convey the idea that its use does not and will not interfere with the use of the easement by plaintiffs. Any doubt on this subject was removed by the express disclaimer of defendants' able counsel, who frankly stated that plaintiffs' title to the easement was not questioned; his contention being that the defendants owning the fee had a right to use the premises in any manner not inconsistent with plaintiffs' rights.
"Having held that plaintiffs' cause of action is equitable and not legal, the inquiry is then narrowed down to this: Are the defendants as a matter of right entitled to have a jury pass upon whether or not the erection and maintenance of the building upon plaintiffs' right of way is inconsistent with the use for which it was acquired?
"I do not think so. That question does not relate to the title to the soil, but is one which a Court of Equity can pass upon with or without the aid of a jury, as it may in its wisdom determine.
"If the Court should decide that plaintiffs are entitled to have the building removed, and should issue its mandatory injunction to that end, then the Court can also pass upon the question of damages, as Courts of Equity frequently do, when damages are incidental to the main relief sought; or the Court can, if it so desires, form an issue and send it to a jury.
"Indeed, the Court can, even upon the coming in of the Master's report, send any of the questions of fact to a jury, upon issues framed for that purpose.
"As I see it, the cause of action is not one for the recovery of money only; it is not one in which title to real estate is involved, but one sounding in equity, in which the issues will have to be tried by the Court, unless upon further hearing, it should be determined that issues be framed and sent to a jury.
"It is, therefore, ordered that the above-stated case be, and the same hereby is, referred to D.S. Jones, Esquire, Master of Greenwood County, to take testimony and pass upon all issues of law and fact, and report the same to this Court."
Messrs. Thurmond Daniel, for appellants, cite: Court of Equity without jurisdiction here: 129 S.C. 18; 21 R.C. L., 489; 34 S.C. 281; 42 S.C. 96; 105 S.C. 375; 79 S.C. 473; 35 C.J., 158. Jury trial proper: 134 S.C. 430; Art. I, Sec. 25 Const.; 114 S.C. 123; 109 S.C. 135; 60 S.C. 569; 42 S.C. 138; 63 S.C. 38. As to title and use of highway: 7 A.L.R., 640; 2 Speers, 553; 109 S.C. 444; 18 S.C. 262; 140 S.C. 388; 89 S.C. 391; 134 S.C. 106; Sec. 2907, Code; 137 S.C. 469; 136 S.C. 377. Same determined by jury: Sec. 533 Code. Nuisances must be primarily passed on by jury: 42 S.C. 96; 63 S.C. 38; 17 S.C. 417; 24 S.C. 39; 60 S.C. 569; 54 S.C. 430. Estoppel in pais raises issue for jury: 86 S.C. 406; 89 S.C. 391. As to jurisdiction: Sec. 603, Code; 34 S.C. 110; 36 A.S. R., 750; 106 S.C. 224. Question may be raised at any time: 87 S.C. 8. Remedy for public nuisance: 24 S.C. 39; 102 S.C. 442; 1 McM., 36; 12 Rich., 419. An order affecting mode of trial of a cause is appealable: 97 S.C. 476; 19 S.C. 286; 34 S.C. 169; 43 S.C. 302; Id., 187; 61 S.C. 39. Question of damages for jury: 104 S.C. 313; 128 S.C. 293; 59 S.C. 377; 93 S.C. 357.
Messrs. Grier, Park McDonald, for respondents, cite: Properly referred to Master here: Sec. 533, Code; 83 S.C. 51; 106 S.C. 30; 79 S.C. 426; 66 S.C. 458. Not deprived of trial by jury: 140 S.C. 105; Acts 1928, 1149.
February 8, 1929. The opinion of the Court was delivered by
The above-entitled action was commenced by the plaintiffs against the defendants on the 16th day of May, 1928, and the defendants duly interposed answer to the complaint.
The plaintiffs made a motion for an order, referring all issues of fact and law to the Master in and for Greenwood County, in the State of South Carolina, but defendants strenuously opposed the order; however, his Honor, C.C. Featherstone, granted the order of reference accordingly, and from this order, in due time, the defendants gave notice of intention to appeal to the Supreme Court.
The order of Judge Featherstone will be reported. The sole question in this case is whether an order of reference is proper under the pleadings. If it is, the order is not appealable, and the appeal should be dismissed.
The order appealed from is an order of reference to the Master to take the testimony and report upon all issues of law and fact. The undisputed facts as shown by the complaint and admitted by the answer are that the Greenwood Highway Commission condemned a strip of land 75 feet wide through defendants' lands for the purpose of building and constructing a highway and for uses incident thereto. The right of way extends 37 1/2 feet from the center of the road. The county paid defendants $400.00 for this strip of land, and shortly after the road was completed defendants went back on the lands and erected thereon a filling station, partly within and partly without the right of way. The roof of the filling station extends into the 37 1/2 feet, 13.8 feet on one side and 10.4 feet on the other side, and practically takes one-half of the right of way from the center of the road on that side.
These allegations in the complaint are admitted by the answer.
Plaintiffs seek to enjoin the obstruction and require the removal of it, together with damages. The answer of the defendants simply takes the general position that the fee to the lands is in the defendants, and they have the right to use any portion of the strip of land for their own purposes so long as they do not obstruct or interfere with the actual use thereof for highway purposes; and it alleges that the defendants erected the structure where directed by an engineer acting in the scope of his duties for the State Highway Commission, and, therefore, plaintiffs are estopped from questioning their right to so use the same.
The question, therefore, before the Court simply resolves itself into one of construction of the pleadings.
If the pleadings raise an issue of title to real estate, then it is, of course, triable by jury, so the first question is whether or not an issue of title is raised.
We find that no such issue is raised by the pleadings, because it is admitted that the lands were condemned by the Highway Commission for road purposes, and that defendants were paid therefor; and it is conceded by the Highway Commission that the fee to the lands is in the defendants, and that plaintiffs simply have an easement for road purposes over the same, with all the incidents necessary to the exercise of such easement. This is admitted by the defendants, and, therefore, there could be no issue of title.
The next question which arises is whether the case under the pleadings falls within the provisions of Section 533 of the Code, which reads as follows:
"An issue of law must be tried by the Court, as also cases in chancery, unless they be referred as provided in Chapter V of this title. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived, as provided in Section 588, or a reference be ordered."
A casual examination of the complaint shows that its main purpose is to remove the obstruction and to prevent the defendants from maintaining an obstruction on the right of way of the plaintiffs, and as incidental to this the complaint asks damages. It can, therefore, hardly be said that the action is for the recovery of money only or of specific real or personal property.
This section of the Code has come before the Court for construction many times. In the case of Hickson Lumber Co. v. Stallings, 83 S.C. 51, 64 S.E., 1015, where the action was somewhat like the action in this case, the Court held that, since the allegations of the complaint not only ask for legal relief, but equitable relief by way of injunction, it could not be successfully contended that the issues of fact raised by the pleadings were for the recovery of specific real or personal property or for money, and, therefore, the case could properly be referred to the Master. The section was again discussed in the case of W. Gordon McCabe Co. v. Colleton, 106 S.C. 30, 90 S.E., 161, and in Shute v. Shute, 79 S.C. 426, 60 S.E., 961, where a great many cases are discussed and cited, and again in Gregory v. Perry, 66 S.C. 458, 45 S.E., 4.
If the Court reaches the conclusion that the complaint is not for the recovery of money only or for the recovery of specific real or personal property, then, as a matter of course, the case is referable.
This does not necessarily deprive the defendants of a trial by jury. They have the right under the rules of the Court to ask a Court of Equity to frame issues, and the Court has the power, notwithstanding the order of reference, to frame issues on the trial of the case, at the proper time. This was decided in the case of Palmetto Bank v. Grimsley, 140 S.C. 105, 138 S.E., 624.
There is no question about the terms of the order of reference, for that now has been disposed of by the Act of 1928, p. 1149, where the Court, on application of either party, or on its own motion, may make a general order of reference as to the law and facts in all equitable actions. The only real question in the case is whether the complaint can be construed to be for the recovery of money only or for specific real or personal property.
Plaintiffs gave notice after this issue was before the Court that all claims for damages were abandoned.
The point made that plaintiffs cannot maintain this suit is not properly made by the pleadings. There is no legal issue of fact in the case that would necessitate a trial by jury.
All the exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER, and CARTER concur.