Adams v. Georgia-Carolina Power Co.

90 S.E. 702, 106 S.C. 162, 1916 S.C. LEXIS 282

• Court: Supreme Court of South Carolina
• Decided: November 23, 1916
• Docket: 9557
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Gage.

The plaintiff has commenced two actions against the defendant. The first action was begun in February, 1913, and the second was begun in September, 1913. They differ altogether in character. The first action is to permanently enjoin the defendant from completing the statutory proceeding it had begun to condemn the plaintiff’s land to overflow them with waters from the Savannah River. Before that action was tried, the attorneys in the case undertook, by correspondence, to settle their differences; and it turned out that the chief difference bewixt them was the quantity of land which was to be thus appropriated. The correspondence, when completed, did not effect its object. By its terms the plaintiff thought herself entitled to have compensation from the thread of Savannah River out to the level of the heightened water; and the defendant thought itself liable to pay for flooding only so much land as lay betwixt the level of the heightened water down to the edge of the waters at normal height. The difference was perhaps some 12 acres at $100 per acre. But before the attorneys had discovered their difference, it now appears that the plaintiff accepted that compensation which she was confessedly entitled to have, and made a deed .to the defendant, and left it to the Court to say whether the contested margin should be paid or not by the terms of the correspondence; and the defendant flooded the plaintiff’s lands. The second action was commenced by the plaintiff to enforce the contract which it was claimed the correspondence evidenced. The second action alone has beeen tried; but the first action has never abated; it is yet intact. At the trial of the second action below, the Court sustained the plaintiff’s view of the correspondence and ordered the additional compensation. On the appeal from that decree the defendant explicity contended, amongst other things it is true, that the minds of the correspondents had not met, and there was no contract of compromise. This Cpurt sustained that view, and ordered that the parties be “restored to their original status.” The only issue now made, upon appeal from an order of the Hon. Frank B. Gary, is the meaning of this Court’s judgment.

We think it is manifest that there was no purpose, and no authority, for us to have now concluded that the words used by us meant, or mean, that the defendant should now release the water off .the land and deliver up the deed, and that the plaintiff should now pay back the money which she has received. We can no more do that at this stage of the litigation than we could hold on the present record that the deed was rightly made and the money was rightly paid. The case is not ripe to hold either postulate. But we have held, and do now hold, that the parties did not reach any agreement in compromise of their differences. Therefore the parties have now the right to litigate whether or not the acts done in execution of the supposed agreement shall not now be undone. These acts have been first brought to the attention of this Court on this motion before the Circuit Court. We refer to the payment of money to the plaintiff by the defendant, the execution of the deed by the plaintiff, and the flooding of the lands of the plaintiff. Those matters are not ripe for judgment on the pleadings in the second and present action; but they involve a question of justice, and the plaintiff has a right to plead them in the first action: The .“original status” was that which existed before the supposed compromise agreement was made; for the vain agreement was made to settle that status. The plaintiff is, therefore, entitled to proceed with her first action; and she ought to have the chance to supplement the pleadings thereof so as to put in issue the question whether or not the plaintiff may not pay back the money she received, and whether or not the defendant shall not deliver back the deed it received, and turn off the accumulated waters. We are, therefore, of the opinion that while the Circuit Court was right not to grant the plaintiff’s motion in this action, yet it is our duty and right to construe our own judgment, and to place the parties in their original plight, so that justice may be done. It is, therefore, ordered that the order of the Circuit Court, in so far as it denies the plaintiff’s motion, be affirmed; that the plaintiff may proceed, if so advised, with the first action, the same as if no compromise agreement had been attempted; that she may supplement her complaint therein so as to litigate the things done by the parties subsequent to the commencement of the second action; but if it be adjudged that that the chief difference betwixt them was the quality of condemnation proceedings instituted by defendant shall be carried forward to final judgment, to the end that plaintiff’s right to compensation for the land under the river, as well as for the lands for the taking of which her right to compensation is not disputed, and the amount of such compensation shall be ascertained and determined in the manner prescribed by law. If the parties agree upon and submit to the Court the single issue of plaintiff’s ownership of, and dependent right to compensation for, the land under the river, of course, they may do so; or they may otherwise limit the issues as they may agree or be advised.

The order of the Circuit Court is, therefore, affirmed, but without prejudice to the rights of the parties as hereinbefore indicated.

Mr. Chibe Justice Gary, and Messrs. Justices Hydrick and Watts, concur in the opinion of the Court.