Adams v. Georgia-Carolina Power Co.

85 S.E. 312, 101 S.C. 170, 1915 S.C. LEXIS 103

• Court: Supreme Court of South Carolina
• Decided: May 14, 1915
• Docket: 9104
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an action for specific performance. The respondent, in her argument, thus states in part the history of the controversy:

“The defendant is a corporation organized for the purpose of erecting, operating and maintaining a plant for the manufacture and sale of electric power. Its plant is situate on Savannah River, and in order to obtain the power necessary to operate its plant, it began the erecting of a dam across the Savannah River below the lands of the plaintiff. In course of the erection of this dam, it was found that the water would be backed up so as to submerge considerable lands belonging to this plaintiff, and would water-sob other of her lands. She owned a large tract of some three hundred acres on Savannah River, and the defendant commenced proceedings to condemn so much of the same as it estimated would be affected by its dam across the river. The plaintiff questioned the right of the defendant to take her lands by condemnation and sought to have the condemnation proceedings stopped by injunction, when negotiations were opened for a settlement of the differences between the parties.”

The appellant promised to take 51 27-100 acres of plaintiff’s land. Both the plaintiff and defendant claimed that a contract was made by the parties and both ask for an enforcement of the contract, as they understand it. Both parties claim that the contract can be gathered from certain letters that passed between Mr. Grier, as attorney for the plaintiff, and Mr. Wright, as attorney for the defendant. These letters contain the whole showing, and upon them rest the rights of the parties.

The principal question between the parties is as to the ownership of a strip of land lying between the bank of the Savannah River and the middle of the river.

Before specific performance can be decreed, it is first necessary to determine whether there is a contract between the parties or not. If ther eis no contract, then there is nothing to enforce. It would-be speculative for a Court to say what would have been the rights of the parties if they had made a contract. The declaration of opinion would be simply the individual opinions of the members of the Court.

1 Was there a contract between the parties? The rule is thus stated in Spears v. Long, 32 S. C. 533-534, 11 S. E. 332.

“Without stopping to inquire whether the contract in contention here was or was not of a class capable of being enforced, it was still necessary that it should have certain elements and incidents in order to authorize a Court of equity to compel its performance. The Court cannot make a contract for the parties, or even complete an imperfect one, and, therefore, it is indispensable that there should be a concluded contract 'certain and explicit.’ As Mr. Pome-roy puts it: ‘The contract must be concluded, certain, unambiguous, natural and upon a valuable consideration; it must be perfectly fair in all its parts, free from any misrepresentation, or misapprehension, fraud, or mistake, imposition or surprise.’ 3 Pom. Eq. Jur., sec. 1415, and notes.”

In this case it gives this Court pleasure to know that the only question is as to misapprehension and surprise. The only question is, did the minds of the parties meet?

When able and honorable counsel, who conducted the negotiations, come into Court on opposite sides and the one alleges that a certain tract of land was included in the contract, and the other states, with equal confidence, that it was not included, then the misapprehension is on the face of the pleadings. Here there is no variance between the pleadings and the proof on that subject.

Mr. Grier writes, in his first letter: “You, of course, recall that this letter is entirely without prejudice, and so will be your reply. In fact, we had just as well have it understood that any corfespondence passing between us is to be considered by both of us without prejudice to the rights of our respective clients.” To this Mr. Wright replied the next day: “My first impulse is to say in reply that any further correspondence between us on this subject, would, in my opinion, prove futile, as my client and yours are so hopelessly apart, both as to acreage and price involved. However, it certainly cannot prejudice the cause of either for me-here to give you my point of view.”

Before either party can successfully claim that the other is bound by any letter that followed, it must appear that the personal character of the letters was distinctly repudiated and that the “hopeless” disagreement had become a complete understanding. The record does not show it. Those letters were written before Mr. Wright knew that Mr. Grier would contend that his client owned the bed of the river to the center of the stream. When Mr. Wright was informed by Mr. Grier that the riparian proprietor claimed title to the middle of the stream, Mr. Wright promptly writes to Mr. Grier “to say that it was a surprise and shock to me is but expressing it mildly.” To this Mr. Grier in turn says, “frankly, it is somewhat a surprise to us that you raise the question,” i. e., plaintiff’s title to the center of the stream.

Both parties stand where they stood that day. There are about twelve acres in the river. It is as clear as can be that Mr. Wright, for his client, never intended to include the twelve acres, and that Mr. Grier, for his client, never intended to exclude it from the deed. These twelve acres constitute a material part of the sale, and since the parties did not, and do not, agree as to its ownership, their minds never met and there is no contract between the parties.

There were other matters of disagreement, but it is needless to prolong this opinion.

2, 3 It is unfortunate for these parties that this Court cannot decide the real question between them, to wit, the ownership of the land lying between the bank and the middle of the stream. It is very clear that having held that there is no contract to enforce, a declaration as to' what would have been the construction if a contract had been made, would not be binding on the parties, or this Court in subsequent litigation. The question as to the right of the plaintiff in this case to the twelve acres in controversy does not affect the plaintiff alone. It affects the rights of every citizen of this State who owns land lying on the navigable streams in this State, where the tide does not ebb and flow. It may affect the rights of every citizen of this “State and ■the United States.” Under our Constitution, no Court would be justified in making a deliverance on a question of such wide and vital importance, unless its right and duty to do so is indisputable.

Judgment reversed and the parties restored to their original status.

Messrs. Chief Justice Gary and Justices Watts and Gage concur in the opinion of the Court.

Footnote. — As to absence of necessary parties precluding a decision as to the validity of title to lands, see Green v. Niver, 43 S. C. 369, 21 S. E. 263. As to certainty of contract, see Joyner v. Hof man, 59 S. C. 528, 38 S. E. 174.