Babcock v. Postal Telegraph-Cable Co.

Supreme Court of South Carolina

Babcock v. Postal Telegraph-Cable Co.

103 S.E. 522, 114 S.C. 319, 1920 S.C. LEXIS 115

CourtSupreme Court of South Carolina

DecidedJune 28, 1920

Docket10434

StatusPublished

Cited by1 cases

This text of 103 S.E. 522 (Babcock v. Postal Telegraph-Cable Co.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Babcock v. Postal Telegraph-Cable Co., 103 S.E. 522, 114 S.C. 319, 1920 S.C. LEXIS 115 (S.C. 1920).

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Opinions

The opinion of the Court was delivered by

Mr. Justice Eraser.

The evidence tends to show that the plaintiff is the owner of a tract of land near Columbia, over which the defendant has a line of wires held up by poles on the plaintiff’s land. The defendant sent a gang of hands to clear out its right of way, and they cut down pine trees under the wires and in the sides of the line of posts.- As soon as the plaintiff knew that the gang'of laborers were cutting down the trees he protested. In spite of his protest, the servants of the defendant continued to cut until their purpose was accomplished. The small trees that had been cut down were not removed, but left to die where they fell. This action is brought for damages. The defendant set up that it had a right of way .for which it had paid valuable consideration to the former owner. The only proof of the right of way was the presence of the wires and poles for more than ten years, and that it had aforetime cleared the land of obstructions to its wires. There are two causes of action stated in this complaint; the one for damages for cutting the trees, and the other for damages for leaving on the right of way dying trees that caused the death of other trees beyond the right of way.

*321 1 *320 1. The evidence to sustain the defense to the first cause of action is, to say the least of it, very doubtful. The *321 defendant only claimed the right to cut those trees that interfered with the wires. The lowest wire was 18 feet from the ground, and yet the defendant cut bushes 2 feet high. In the judgment of the agent of the defendant, only such growing trees as interfered with the wires were cut. Not a fact is given to sustain this belief. The tallest trees cut did not reach the wires by 3 feet. So this case would establish a rule that the defendant is the sole judge of the necessity to destroy the property of the plaintiff, and there is no authority for it.

2 2. The defense to the second cause of action is without a scintilla of evidence to support it. The evidence, and the uncontradicted evidence,, was that the natural effect of cutting pine trees in the spring and summer and leaving them to die on the land is to cause the death of other pine trees in the adjoining land outside of the right of way. There was not a word or testimony to the contrary. Even the defendant’s witnesses admitted that pine trees outside on the right of way were dying.

We have been cited to no authority and we know of none that holds that in the exercise of a right of way over the land of another the owner of the right of way has the. right to so use his right of way as to destroy adjacent lands. The evidence here shows, and it is also uncontradicted, that the plainiff’s entire holding is seriously impaired for the' purposes for which it is used by the destruction’of his trees. It is also undisputed that this destruction outside of the right of way of the defendant is caused by the act of the defendant. There should be a new trial, because the defense is without any evidence to sustain it.

The judgment is reversed, and a new trial ordered.

Messrs. Justices Watts and Gage concur.

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The opinion of the Court was delivered by

Mr. Justice Eraser.

The evidence tends to show that the plaintiff is the owner of a tract of land near Columbia, over which the defendant has a line of wires held up by poles on the plaintiff’s land. The defendant sent a gang of hands to clear out its right of way, and they cut down pine trees under the wires and in the sides of the line of posts.- As soon as the plaintiff knew that the gang'of laborers were cutting down the trees he protested. In spite of his protest, the servants of the defendant continued to cut until their purpose was accomplished. The small trees that had been cut down were not removed, but left to die where they fell. This action is brought for damages. The defendant set up that it had a right of way .for which it had paid valuable consideration to the former owner. The only proof of the right of way was the presence of the wires and poles for more than ten years, and that it had aforetime cleared the land of obstructions to its wires. There are two causes of action stated in this complaint; the one for damages for cutting the trees, and the other for damages for leaving on the right of way dying trees that caused the death of other trees beyond the right of way.

*321 1 *320 1. The evidence to sustain the defense to the first cause of action is, to say the least of it, very doubtful. The *321 defendant only claimed the right to cut those trees that interfered with the wires. The lowest wire was 18 feet from the ground, and yet the defendant cut bushes 2 feet high. In the judgment of the agent of the defendant, only such growing trees as interfered with the wires were cut. Not a fact is given to sustain this belief. The tallest trees cut did not reach the wires by 3 feet. So this case would establish a rule that the defendant is the sole judge of the necessity to destroy the property of the plaintiff, and there is no authority for it.

2 2. The defense to the second cause of action is without a scintilla of evidence to support it. The evidence, and the uncontradicted evidence,, was that the natural effect of cutting pine trees in the spring and summer and leaving them to die on the land is to cause the death of other pine trees in the adjoining land outside of the right of way. There was not a word or testimony to the contrary. Even the defendant’s witnesses admitted that pine trees outside on the right of way were dying.

We have been cited to no authority and we know of none that holds that in the exercise of a right of way over the land of another the owner of the right of way has the. right to so use his right of way as to destroy adjacent lands. The evidence here shows, and it is also uncontradicted, that the plainiff’s entire holding is seriously impaired for the' purposes for which it is used by the destruction’of his trees. It is also undisputed that this destruction outside of the right of way of the defendant is caused by the act of the defendant. There should be a new trial, because the defense is without any evidence to sustain it.

The judgment is reversed, and a new trial ordered.

Messrs. Justices Watts and Gage concur.

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Bluebook (online)

103 S.E. 522, 114 S.C. 319, 1920 S.C. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babcock-v-postal-telegraph-cable-co-sc-1920.

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