Darlington Oil Co. v. Pee Dee Oil & Ice Co.

40 S.E. 169, 62 S.C. 196, 1901 S.C. LEXIS 23

• Court: Supreme Court of South Carolina
• Decided: November 29, 1901
• Status: Published

Opinions

The opinion was filed July 29, 1901, but held up on petition for rehearing until

November 29, 1901. The opinion of the Court was delivered by This action was commenced on the 26th day of September, 1900, by the service of the summons in the usual form and notice of no personal claim on the defendant, the Virginia-Carolina Chemical Company. The object of the action was to establish, by the judgment of the Court, the right of the plaintiff to have free access to and use of the railroad track scales situate on the premises of the defendant, the Pee Dee Oil and Ice Company, and to any and all substitutes therefor. That until the final hearing of the cause, the defendant, the Pee Dee Oil and Ice Company, its officers, agents and servants, be enjoined from, in any manner, interfering with the plaintiff's free access to and use of the aforesaid railroad track scales and to any and all substitutes therefor, and that upon the final hearing such injunction be made perpetual. For $5,000 damages against the defendant, the Pee Dee Oil and Ice Company, and for such other and further relief as the Court may see meet and proper.

The complaint sets out in its first paragraph the fact that plaintiff was duly incorporated under the laws of this State. Its second paragraph sets out that the defendant, the Pee Dee Oil and Ice Company, was duly incorporated under the laws of this State. The third paragraph sets out the incorporation of the defendant, the Virginia-Carolina Chemical Company, under the laws of the State of New Jersey. Thefourth and fifth paragraphs set out that the plaintiff, under its new charter name of the Darlington Phosphate Company, on the 14th June 1899, sold and conveyed, for a valuable consideration, a portion of its plant unto the Virginia-Carolina Chemical Company, as fully appears by its deed therefor by exhibit B, annexed to the complaint. The sixth paragraph states that the plaintiff agreed with the defendant, the Virginia-Carolina Chemical Company, to change its corporate name before 1st January, 1900, and in accordance with its agreement its corporate name was changed, under the laws of this State, from the Darlington Phosphate Company to that of the Darlington Oil Company. The seventhparagraph alleges, "that under and by the terms of the deed of the plaintiff, exhibit B, to the defendant, the Virginia-Carolina Chemical Company, the plaintiff expressly reserved the right `to have free access to, and use of, the railroad track scales' situate on the premises conveyed, `and any and all substitutes.'" The eighth paragraph alleges that when the Atlantic Coast Line Railway, which operated trains over the side track wherein the railroad track scales were located, notified this plaintiff that they were defective from use and must be repaired, the plaintiff notified the defendant, the Virginia-Carolina Chemical Company, thereof, and the latter notified the plaintiff by letter, on 5th day of August, 1899, "that it (we) really saw but little use it (we) will have for the track scales" * * * and, therefore, do not feel disposed to go to the expense that the railroad company desires in the premises, "but if the plaintiff is willing to go to the expense of furnishing the lumber necessary to renovate such track scales for the use it gets out of the scales, it would be satisfactory to the Virginia-Carolina Chemical Company for the repairs to be made. That accordingly the plaintiff furnished to the said railroad Company the necessary lumber at cost of $41.06." Paragraph nine alleges that, on the 30th day of July, 1900, for a valuable consideration, the Virginia-Carolina Chemical Company, by its deed therefor (exhibit D), sold to the defendant, the Pee Dee Oil and Ice Company, amongst other things mentioned in its deed, all the right, title, interest and use of the said Virginia-Carolina Chemical Company in and to all side tracks and scales as specified in the deed of the plaintiff to the said Virginia-Carolina Chemical Company, dated 14th June, 1899. Paragraph ten alleges upon information and belief that the defendant, Virginia-Carolina Chemical Company, owns and controls at least one half of the capital stock of the defendant corporation, the Pee Dee Oil and Ice Company; that a large part of the other half of the capital stock of the Pee Dee Oil and Ice Company is owned and controlled by former stockholders and officers of the plaintiff, and that the Pee Dee Oil and Ice Company, through its officers, had actual and constructive notice of the plaintiff's reserved rights under the deed of plaintiff to the defendant, the Virginia-Carolina Chemical Company. Paragraph eleven alleges that the free access to and use of said scales have been and are now absolutely necessary to the conduct of plaintiff's business; that the major part of its raw material is shipped to it in car load lots, and the major portion of its manufactured products, consisting of oil, meal and hulls, are sold and shipped out in car load lots and in oil tanks; that its custom is to have the weights of the raw material coming in and the manufactured products shipped out tested by said scales. "That the plaintiff is now in the midst of its busy season, has relied absolutely upon its right to the use of said scales, and specially reserved those rights in the sale aforesaid, which is well known to the defendants." Paragraph twelve alleges that notwithstanding the foregoing facts, the plaintiff had uninterrupted use of such railroad track scales while the defendant, the Virginia-Carolina Chemical Company, had possession of the property conveyed it by the plaintiff up to the time in July, 1899, it sold its plant to the Pee Dee Oil and Ice Company, and also from July, 1900, to 21st September, 1900, while the latter owned the property, and notwithstanding the plaintiff in its deed had expressly reserved the right of access to and use of the railroad track scales, yet on the 21st September, 1900, the defendant, Pee Dee Oil and Ice Company, ruthlessly and wantonly invaded plaintiff's rights as to such track scales by forbidding the plaintiff to use such scales, and by forbidding the Atlantic Coast Line Railway to weigh any cars intended for the plaintiff, or intended to be forwarded by the plaintiff, on said track scales. Paragraphthirteen alleges that plaintiff has been injured by the said unlawful, wilful and wanton refusal of the defendant, the Pee Dee Oil and Ice Company, in the sum of $5,000. Paragraphfourteen alleges "that it is impossible for it to carry on its large business without the use of said railroad track scales; that it is now too late in the season to provide other scales; that it has already been damaged by the unlawful, wilful and wanton acts of the said defendant, and that if the defendant be allowed to continue unlawfully, wilfully and wantonly to prevent the plaintiff from the enjoyment of its property rights in the premises, the plaintiff's business will be further seriously injured and destroyed." The prayer for judgment is virtually stated when we announced at the beginning of this opinion the object of the action.

On the complaint and the affidavits of Mr. Bright Williamson, as the president of the plaintiff corporation, of Robert Keith Dargan, Esq., and of W.E. James, jr., Esq., an ex parte application for a temporary injunction was made before his Honor, Judge Watts, the resident Judge of the 4th Judicial Circuit, which was granted by Judge Watts on the 27th day of September, 1900. The two defendants thereafter answered. Upon due notice thereafter, a motion to dissolve Judge Watts' order of temporary injunction was made before Judge Gage on the 13th day of October, 1900, by the Pee Dee Oil and Ice Company, on the pleadings and the affidavits of C.S. McCullough, Esq., and of W. Albert Parrott, Esq., as C.C.C.P. At the date of the hearing before Judge Gage, both parties used affidavits. The affidavits and the answers of defendants will be reported.

On the 31st day of January, 1901, the Circuit Judge made an order dissolving the temporary injunction granted by Judge Watts. The following is the text of Judge Gage's order:

"This is a notice by defendant, the Pee Dee Oil and Ice Company, to dissolve a temporary order of injunction made by Judge Watts on 27th September, 1900. There are five stated grounds therefor. These grounds are: 1. Because there is no equity in the plaintiff's complaint. 2. Because the plaintiff's injury, if any, for the violation of its alleged right, as set forth in the complaint, is not irreparable. 3. Because an injunction is preventive and not remedial, and there is no allegation is said complaint of any threatened invasion of plaintiff's rights, but only as to what damage would ensue if defendant should invade such alleged rights. 4. Because, even if the alleged right to the use of the property as set forth in the complaint exists as claimed, the plaintiff has an adequate and complete remedy at law for any breach thereof, this defendant being solvent and fully able to respond to any recovery in damages. 5. Because, even if the alleged right to the use of the property as claimed in the complaint exists in the plaintiff, which this defendant denies, the said order of injunction was improvidently issued, and because the complaint fails to show right of action and cause for injunction against this defendant.

"By consent of counsel, I reserved my opinion for a more thorough consideration of the issues made. The argument was able and helpful. The questions presented are intensely interesting. The motion is made on the pleadings and sundry affidavits submitted by both sides. In the argument before me there was no serious contest about any fact; the issues argued were those of law. The plaintiff was incorporated 11th August, 1891, as the Darlington Phosphate Company. Its name was thereafter, on 1st January, 1900, changed, by amendment of its charter, to the Darlington Oil Company. It was possessed of a parcel of land lying along the track of the Atlantic Coast Line Railway Company, upon which was located a fertilizer factory, and through which there ran a railroad side track, from the Atlantic Coast Line Company. In that side track there were scales upon which to weigh car load lots. On 14th June, 1899, plaintiff conveyed by deed eight and one-half acres of the said lands, with factory thereon, to the Virginia-Carolina Chemical Company, reserving still other land upon which the railroad side track extended. The plaintiff now operates an oil mill on its own lands, but uses the aforementioned scales to weigh its cotton seed. The scales are in that part of the side track which lies on the eight and one-half acres. It does not clearly appear who owns the railroad side track. The cars of the Atlantic Coast Line Company are operated over it, and I assume the iron and crossties belong to that railway company. In the beginning, the scales were purchased and owned by the plaintiff, and I assume they were put in by the railway company, because it appears that company made the repairs thereon, and the scales constitute a part of its track. When the plaintiff conveyed to the Virginia-Carolina Chemical Company the eight and one-half acres before mentioned, it, in the same instrument, released by quit claim all its right, title and interest in and to the side track thereon, and conveyed also the same right to use any and all the side tracks it then enjoyed by permission of the Atlantic Coast Line Railway Company, but reserved in the deed the right of `free access to and the use of said railroad track scales * * * and any and all substitutes therefor.'

"The questions of law are: what right has the plaintiff in the scales? And if it has a right, can the assignee of the Virginia-Carolina Chemical Company, to wit: the Pee Dee Oil Company, be enjoined from an interference therewith? Under the proof, I consider the rights of the Pee Dee Oil Company no higher than were those of its assignor. That view was not conceded by defendant's counsel, but it was not seriously contested. The aforementioned reservation by the plaintiff is the same as if the Virginia-Carolina Chemical Company had by independent deed conveyed to it the right to use the scales. That is the transaction in fact though not in form. The defendant contends that the scales are its personal property, and even though the use thereof was granted to the plaintiff, yet for a breach of such contract, if contract it was, defendant is liable only for damages to be assessed by a jury at law. If it be so that the scales are personalty, a contract for the use thereof will not be specifically enforced, and as a corollary thereto, a breach of the contract will not be enjoined. It will not be denied that if the scales were sitting loose upon the land of the Pee Dee Oil Company, and confessedly of a personal character, such a contract as that by which the plaintiff claims to use them would not be specifically enforced. If it must be enforced by decree for specific performance or by injunction, it must be because the scales are not personalty, but are a part of the defendant's land called fixtures. The record shows that the scales are joined to the soil; but the simple fact of joinder does not determine their character. Whether the scales be land or personalty, is a mixed question of fact and of law, but chiefly of fact. The old cases do not much help the decision of this cause, for the facts here are the new creations of an industrial science which is not content with the use of old things. The elements of difficulty are, a railroad side track on the Pee Dee Oil Company's land, belonging to and used by a railway company, a small section of which track is — not rails resting on crossties imbedded in the soil — but rails resting on another device called scales to register the weight of a car superincumbent upon the rails. The scales are useless but for the track, yet the track belongs to one party and the scales to another party. The side track, except the section thereof called scales, is the personal property of the railway company. When the Darlington Phosphate Company got the railway company to underlay a part of its track with scales, did it intend that those scales should partake of the nature of land — that is, permanently remain there as part of the land; or did it intend that the scales should partake of the nature of the side track — that is, be liable to exist or be removed with it? It is reasonably clear that the last named intention was entertained; and as a consequence, the scales are personal property in character.

"It is, however, contended by the plaintiff, that even though the scales be personal property, yet the clause in the deed hereinbefore quoted, created an easement on the land of the Pee Dee Oil Company, to wit: the eight and one-half acres in favor of the plaintiff. But the right to enter on the lands of another to use personal property there situate, cannot be termed an easement. An easement is an estate in land, and the scales are not land. If the right created by the said reservation be a license, it is revocable at the will of the grantor, unless the grantee has coupled with it an interest in the scales. The grantee has no such interest, except it be for the lumber furnished for repairs thereon. Inconsiderable repairs would not create such an interest; and it does not appear that the repairs in this case were aught else. If the said reservation by deed was a contract, on consideration, to use the scales, action at law lies for a breach thereof, and the plaintiff is remitted there for a remedy.

"It is, therefore, ordered, that the order of injunction above referred to be, and the same is hereby, dissolved."

The plaintiff now appeals from the order on the following grounds:

"First. These proceedings having been brought for the purpose of obtaining a permanent injunction, and the facts alleged in the complaint being sufficient to obtain a temporary injunction, it was error in his Honor, upon motion on affidavits, to decide the case on its merits, and to dissolve the temporary injunction granted by Judge Watts.

"Second. The issues raised by the pleadings being partly issues of fact and of law, the plaintiff had the right to have them determined by the proper authority, and his Honor erred in deciding such issues at chambers upon affidavits.

"Third. His Honor erred in holding, without having any testimony before him to that effect, that it was reasonably clear that when the Darlington Phosphate Company got the railway company to underlay a part of its tracks with scales, it intended that the scales should partake of the nature of the side track — that is, be liable to exist or be removed with it, and that as a consequence the scales are personal property in character.

"Fourth. Having held that `the record shows that the scales were joined to the soil,' and that the intention with which they were joined to the soil determines whether they were fixtures or not, it was error in his Honor to hold, without any testimony before him as to the intention of the parties in so joining said scales to the soil, that the scales are personal property in character, and not fixtures.

"Fifth. Because, whether the scales were so connected with the soil as to constitute them fixtures, and what were the intentions of the parties in so connecting them, are questions of fact, which the plaintiff had the right to have determined at the proper time, in the proper manner and by the proper authority, and pending such determination, the injunction should have been continued, and his Honor erred in not so holding.

"Sixth. That having held that `whether the scales be land or personalty, is a mixed question of fact and of law, but chiefly of fact,' his Honor erred in deciding such question of fact at chambers on affidavits, and upon an assumption as to the intentions of the parties at the time the scales were built.

"Seventh. That having held that the reservation by the plaintiff in its deed to the Virginia-Carolina Chemical Company of the right to have free access to and use of the railroad track scales, and all substitutes therefor, is the same as if the Virginia-Carolina Chemical Company had, by independent deed, conveyed to the plaintiff the right to have free access to and use of said scales and all substitutes therefor, his Honor erred in holding that such a reservation, or deed, did not create an easement in and over the land of the Pee Dee Oil and Ice Company, in favor of the plaintiff, for the purpose therein stated.

"Eighth. Because it is respectfully submitted that the clause in the deed reserving to the plaintiff the right to have free access to and use of the railroad track scales, and all substitutes therefor, creates an easement in and over the lands of the Pee Dee Oil and Ice Company in favor of the plaintiff, irrespective of the questions as to whether the present scales on said lands are fixtures or not, and his Honor erred in not so holding.

"Ninth. Because his Honor erred in holding that if the right created by the reservation in said deed be a license, it is revocable at the will of the grantor — that is, of the Pee Dee Oil and Ice Company.

"Tenth. Because his Honor erred in holding that the grantor, or the plaintiff, has no interest in said scales, except it be for the lumber furnished for repairs thereon, and that such repairs were too inconsiderable to create such an interest.

"Eleventh. Because, having held that the reservation in the deed is tantamount to an independent deed from the Virginia-Carolina Chemical Company to the plaintiff, and the Pee Dee Oil and Ice Company acquired no greater right than its assignor, his Honor erred in holding, in effect, that such reservation was a contract to use the scales on consideration, for which an action at law lies for the breach thereof, and in remitting the plaintiff there for a remedy, and in denying plaintiff equitable relief."

We will now consider the questions which we regard essential to a proper disposition of these grounds of appeal, as, we may remark at the outset, the appellant has set us a proper example in that direction by considering together its first, second, third, fourth and fifth grounds of appeal. What is a preliminary injunction? The definition found in 10 Ency. Pleadings and Practice, at 878, answers this question very well; it is: "A preliminary injunction, or, as it is sometimes called, injunction pendentelite, is a provisional remedy granted before the hearing on the merits for the purpose of preventing the perpetration of wrong, or the doing of any act whereby the rights in controversy may be materially injured or endangered before the final decree, and its purpose is to preserve the subject of controversy until an opportunity is afforded for a full and deliberate investigation," referring in its note to our case of Pelzer v. Hughes, 27 S.C. 408. When will it issue? The same work (10 Ency. Pleading and Practice), at page 890, answers this question in these words: "If the facts charged in the injunction bill show clearly that irreparable injury may be wrought, the Court will take cognizance of the case, and, if the circumstances require it, direct a trial by jury, in the meantime restraining the defendant by injunction, and when the right is established, make the injunction perpetual; and in such case the plaintiff need not by his bill show an incontestable legal title, but need only satisfy the Court that his claim is a substantial one and that there is ground for doubting the validity of the defendant's title * * * The Code, by allowing legal and equitable causes of action to be joined in one suit, has done away with the necessity of establishing the plaintiff's right at law before suing for an injunction." It will be found on examination that the decisions of this Court rendered in Seabrook v. Mostowitz, 51 S.C. 433;Cudd v. Calvert, 54 S.C. 457, and also Alston v. Limehouse, 60 S.C. sustain the foregoing views. The last named cause sets out the doctrine that an order for temporary injunction, wherein are set forth the reasons of the Circuit Judge, must be carefully scrutinized so as to see what findings of fact and conclusions of law the Circuit Judge may announce as leading to his conclusion to grant or refuse the preliminary injunction, for these do not bind the parties to the action. All that is binding is the order granting or refusing the preliminary injunction. It must always be remembered that the Circuit Judge is not able to, and cannot, pass upon questions making up the merits of the action, in the application for a temporary injunction. Therefore, it will not be necessary for this Court, in view of the foregoing decisions, to pass upon any such questions made by the appeal from an order of the Circuit Judge granting a preliminary injunction. It seems to us that the Circuit Judge overlooked some of the allegations of the complaint in the cause at bar; for instance, the complaint alleges that the plaintiff by its deed reserved the right to pass over the lands of the defendant in order to have access to the railroad scales in controversy, and the further facts by its allegations that if the defendant should persist in its refusal to allow plaintiff to pass over its lands, to use said railroad scales, it will ruin its business. Now we must be understood as refusing to pass upon the merits of all these questions; we only refer to them as allegations of the complaint itself, whereby the plaintiff seeks to show how injurious and unconscionable it deems the action of the defendant in its alleged interference with the alleged rights of the plaintiff.

It seems to us, after a careful examination of the pleadings and the affidavits and the order appealed from, that the Circuit Judge was in error in setting aside the order of Judge Watts in granting the temporary injunction. And we are careful not to refer to the alleged facts because they will be passed upon when the action comes on to be tried on its merits.

The judgment of this Court is, that the order made by his Honor, Judge Gage, setting aside the order for a temporary injunction as passed by Judge Watts, be reversed, and that the said order of Judge Watts be sustained as in full effect.

Petition for rehearing refused November 29, 1901, by following order: