The opinion of the Court was delivered by
Mr. Justice Jones.
The plaintiff corporation commenced this action on December 31st, 1901, to perpetually enjoin defendants from diverting the waters of the spring and pond on defendant’s land by opening and deepening a ditch, in violation of plaintiff’s alleged easement therein, granted by the defendants. The issues of law and fact raised by the pleadings were tried before. special Judge Carey, who made decree, dated July 26th, 1905, refusing injunction and dismissing the complaint, from which comes this appeal, upon numerous exceptions to his findings of fact and conclusions of law.
In 1894, Adeline J. Fowles purchased from Julia C. Marshall a three hundred acre tract near the southern limit of the city of Columbia, containing thereon at that time a permanent pond of water, known as the Marshall Pond, formed in a natural depression of the land and supplied by a spring basin on the northern side, .'by a spring known as Folk’s Spring on the western side, and by the surface drainage and seepage from the surrounding slopes. There was at that time no natural or artificial drain for the pond waters, the old ditch dug by the Marshalls draining towards the right of way of the Southern Railway Company having been closed.
The Circuit. Judge found as a fact that in 1896 the defendants cut the ditch, described now as the Fowles old ditch, to drain this land for the purpose of cultivation; that the ditch practically drained the pond and that the lands formerly covered by water, or a large portion thereof, were cultivated in the years 1897, 1898, 1899, 1900, in rice, corn, potatoes and hay, and used for a portion of the time as a pasture; that in the fall of 1900 the pond was nearly dry, the members of the board of health so testify; that during the winter and spring of 1901, considerable water, owing to the rains, collected in the basin of this pond.
The testimony further shows that in the early part of May, 1901, F. S. Royster, the president of the plaintiff company, with a view of purchasing a site for the erection of a fertilizer factory, secured the assistance of Wm. Barn-well, a.nd they, in company with J. Newton Fowles, acting for his wife, inspected the premises. At this time the pond covered some four or five acres. Fowles represented that the springs supplying the pond were never failing and that he considered there was plenty of water for a manufacturing plant of any kind.
Royster and Barnwell did not observe any indications that the pond basin had been in cultivation. Water was then flowing through the old ditch dug by Fowles. According to Barnwell’s testimony, he heard a conversation between Roy
ster and Fowles during the negotiations as to disposing of the surplus water from the pond and keeping the pond down to its ordinary size, in which Fowles stated that he was then in a lawsuit with the Atlantic Coast Line to try to force them to leave the ditch (the old Marshall ditch) open, for the purpose of drawing away the overflow or surplus water from the pond, as it covered too much of his land and he could not use it, and that Mr. Royster said he was on friendly terms with the railroad company and that he thought he could arrange it for him, and would do his best to do so. Fowles testified that he informed Royster that he once had the ditch opened out to the railroad and drained the pond, that the railroad had stopped up the mouth of the ditch and that he had a suit with the railroad, with reference thereto; that Royster said that there would be no trouble about that, and agreed to open that old ditch and drain out to the railroad and that he would use the water all the way out, making a reservoir on his own land, the overflow to go out to the railroad. Fowles further testified that he told Royster that he was ready to clean out the ditch dug by him in 1896.
The negotiations were finally concluded by Barnwell, and on May 20th, 1901, the defendant, Mrs. Adeline J. Fowles, with full covenant of warranty; conveyed to the F. S. Royster Guano Company fifteen acres of her tract aforesaid by metes and bounds, the deed containing also the following grant:
“The right at all times to the free and unobstructed use of the waters of the spring and pond lying north of the parcel hereinbefore granted, and the right to open and maintain a ditch leading from said spring and pond across the land lying between the same and 'the parcel hereby granted, and the right of ingress and egress to and from the lands adjacent thereto for the purpose of opening, cleaning and maintaining said ditch.”
The defendants thereafter sought ah interview with F. S. Royster with reference to the drainage of the water on the
railroad- right of way, and on August 21st, 1901, received a letter from Royster stating that he had instructed the superintendent to go ahead and dig the ditch as soon as'he could contract therefor, and that he had written Mr. Kenly, of the Atlantic Coast Line, with reference to discharging on its track the overflow, and- that he was confident there would be no -difficulty and that the work would proceed at once.
The plaintiff dug its ditch into the pond and drew water therefrom into a reservoir on its own land as its needs required, but made no arrangement to1 take all the water of the spring and pond by providing for continuous drainage from the pond and a discharge of the overflow of its reservoir; on the contrary, plaintiff considered that it had the right to use the pond place as a natural reservoir for the storage of water for its uses when needed, and, therefore, a large part of the water remained ponded on defendant’s land. The defendants, conceiving that plaintiffs had no right to store water on their land, made preparation to clean out the old ditch. It had been their custom to do1 this once or twice each year. After communicating with the plaintiff on that subject, defendants, on November 19th, 1901, received a letter from its vice-president, O. F. Burroughs, confirming the personal proposition made by defendant Fowles that plaintiff would pay one-half of the expense of cleaning out the ditch or overflow, provided same did not exceed ten dollars, stating that for the present they preferred the ditch not to be deepened, as they were putting in some apparatus that would possibly require all the water the pond would afford-. Fowles went ahead and opened out the old ditch, the effect of which was to drain the pond. This ditching by Fowles was completed the 25th day of December, 1901, and this action was begun soon thereafter to restrain the diversion of the water of the spring and pond. After the commencement of the action, and to meet the situation caused by the opening of the Fowles old ditch, the Royster company deepened and extended their ditch across the pond place to the spring, and thereby was enabled to draw to the reservoir all the water
of the spring and pond. The capacity of the reservoir is about 90,000 gallons, and plaintiff claims to require about 45,000 gallons of water for its daily use. The larger portion of the water is used for cooling the acid, which conies hot from the tower, to its normal temperature, so that it may the better take up the nitre fumes.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was delivered by
Mr. Justice Jones.
The plaintiff corporation commenced this action on December 31st, 1901, to perpetually enjoin defendants from diverting the waters of the spring and pond on defendant’s land by opening and deepening a ditch, in violation of plaintiff’s alleged easement therein, granted by the defendants. The issues of law and fact raised by the pleadings were tried before. special Judge Carey, who made decree, dated July 26th, 1905, refusing injunction and dismissing the complaint, from which comes this appeal, upon numerous exceptions to his findings of fact and conclusions of law.
In 1894, Adeline J. Fowles purchased from Julia C. Marshall a three hundred acre tract near the southern limit of the city of Columbia, containing thereon at that time a permanent pond of water, known as the Marshall Pond, formed in a natural depression of the land and supplied by a spring basin on the northern side, .'by a spring known as Folk’s Spring on the western side, and by the surface drainage and seepage from the surrounding slopes. There was at that time no natural or artificial drain for the pond waters, the old ditch dug by the Marshalls draining towards the right of way of the Southern Railway Company having been closed.
The Circuit. Judge found as a fact that in 1896 the defendants cut the ditch, described now as the Fowles old ditch, to drain this land for the purpose of cultivation; that the ditch practically drained the pond and that the lands formerly covered by water, or a large portion thereof, were cultivated in the years 1897, 1898, 1899, 1900, in rice, corn, potatoes and hay, and used for a portion of the time as a pasture; that in the fall of 1900 the pond was nearly dry, the members of the board of health so testify; that during the winter and spring of 1901, considerable water, owing to the rains, collected in the basin of this pond.
The testimony further shows that in the early part of May, 1901, F. S. Royster, the president of the plaintiff company, with a view of purchasing a site for the erection of a fertilizer factory, secured the assistance of Wm. Barn-well, a.nd they, in company with J. Newton Fowles, acting for his wife, inspected the premises. At this time the pond covered some four or five acres. Fowles represented that the springs supplying the pond were never failing and that he considered there was plenty of water for a manufacturing plant of any kind.
Royster and Barnwell did not observe any indications that the pond basin had been in cultivation. Water was then flowing through the old ditch dug by Fowles. According to Barnwell’s testimony, he heard a conversation between Roy
ster and Fowles during the negotiations as to disposing of the surplus water from the pond and keeping the pond down to its ordinary size, in which Fowles stated that he was then in a lawsuit with the Atlantic Coast Line to try to force them to leave the ditch (the old Marshall ditch) open, for the purpose of drawing away the overflow or surplus water from the pond, as it covered too much of his land and he could not use it, and that Mr. Royster said he was on friendly terms with the railroad company and that he thought he could arrange it for him, and would do his best to do so. Fowles testified that he informed Royster that he once had the ditch opened out to the railroad and drained the pond, that the railroad had stopped up the mouth of the ditch and that he had a suit with the railroad, with reference thereto; that Royster said that there would be no trouble about that, and agreed to open that old ditch and drain out to the railroad and that he would use the water all the way out, making a reservoir on his own land, the overflow to go out to the railroad. Fowles further testified that he told Royster that he was ready to clean out the ditch dug by him in 1896.
The negotiations were finally concluded by Barnwell, and on May 20th, 1901, the defendant, Mrs. Adeline J. Fowles, with full covenant of warranty; conveyed to the F. S. Royster Guano Company fifteen acres of her tract aforesaid by metes and bounds, the deed containing also the following grant:
“The right at all times to the free and unobstructed use of the waters of the spring and pond lying north of the parcel hereinbefore granted, and the right to open and maintain a ditch leading from said spring and pond across the land lying between the same and 'the parcel hereby granted, and the right of ingress and egress to and from the lands adjacent thereto for the purpose of opening, cleaning and maintaining said ditch.”
The defendants thereafter sought ah interview with F. S. Royster with reference to the drainage of the water on the
railroad- right of way, and on August 21st, 1901, received a letter from Royster stating that he had instructed the superintendent to go ahead and dig the ditch as soon as'he could contract therefor, and that he had written Mr. Kenly, of the Atlantic Coast Line, with reference to discharging on its track the overflow, and- that he was confident there would be no -difficulty and that the work would proceed at once.
The plaintiff dug its ditch into the pond and drew water therefrom into a reservoir on its own land as its needs required, but made no arrangement to1 take all the water of the spring and pond by providing for continuous drainage from the pond and a discharge of the overflow of its reservoir; on the contrary, plaintiff considered that it had the right to use the pond place as a natural reservoir for the storage of water for its uses when needed, and, therefore, a large part of the water remained ponded on defendant’s land. The defendants, conceiving that plaintiffs had no right to store water on their land, made preparation to clean out the old ditch. It had been their custom to do1 this once or twice each year. After communicating with the plaintiff on that subject, defendants, on November 19th, 1901, received a letter from its vice-president, O. F. Burroughs, confirming the personal proposition made by defendant Fowles that plaintiff would pay one-half of the expense of cleaning out the ditch or overflow, provided same did not exceed ten dollars, stating that for the present they preferred the ditch not to be deepened, as they were putting in some apparatus that would possibly require all the water the pond would afford-. Fowles went ahead and opened out the old ditch, the effect of which was to drain the pond. This ditching by Fowles was completed the 25th day of December, 1901, and this action was begun soon thereafter to restrain the diversion of the water of the spring and pond. After the commencement of the action, and to meet the situation caused by the opening of the Fowles old ditch, the Royster company deepened and extended their ditch across the pond place to the spring, and thereby was enabled to draw to the reservoir all the water
of the spring and pond. The capacity of the reservoir is about 90,000 gallons, and plaintiff claims to require about 45,000 gallons of water for its daily use. The larger portion of the water is used for cooling the acid, which conies hot from the tower, to its normal temperature, so that it may the better take up the nitre fumes. When the water supply is scarce, as it became in 1902, the same water is used several times, but this gradually heats the water and renders it less effective to cool the acid, hence there is a loss from the failure of acid to absorb the proper amount of nitre, and moreover, the water becomes somewhat acidulated and when used in generating steam tends to cause the boilers to pit. For these reasons an abundant supply of water is needed by the plaintiff in its manufacturing enterprise, but, since plaintiff is now draining into its reservoir all the water of the spring and pond, the inadequacy of the water supply, if such exists, is a matter for which plaintiff has no redress against the defendant, unless the plaintiff has the right to pond or store water on defendant’s premises.
1
The controlling question in the case, therefore, is as ft> the proper construction of the deed. Upon this point we agree fully with the Circuit Court, that the deed conveyed only the right to use the water of the spring and pond and to enter and take it, but without the right to compel defendants to maintain the pond in its condition at the time of the sale or to leave water stored therein for plaintiff’s use at its convenience. Under the evidence there was no permanent pond there at the time of the sale, although it is true that by reason of the rains and the partial filling in of the Fowles old ditch the water covered the pond place for several acres. But as already indicated, the evidence shows that for several years previous to the sale the pond had been practically, drained by means of the Fowles old ditch and nearly all the pond place used for pasturage and purposes of cultivation. No representation was made by Fowles that the pond was a permanent body of water; on the contrary,
the evidence shows that the springs as a never failing source of water was the matter to which attention was specially directed. The evidence leaves little room to doubt that at the time of the sale the parties contemplated that there would be a drainage away of the surplus or overflow of the water of the spring and pond. The Royster Company contends that such surplus or overflow is the difference between the amount of water as it stood in the pond basin at the time of sale and any increase of such waters by reason of accumulation from rain, surface drainage or otherwise; whereas, Fowles contends that such surplus overflow is the difference between the water used by the plaintiff and the amount supplied by the spring and pond. The right claimed by defendants to'open and clean out the old ditch to its accustomed depth is perfectly consistent with the terms of the deed, construed in the light of the circumstances and conditions, and this right was recognized by the plaintiff in its offer to bear half the expenses of cleaning out said ditch, but objecting to its being deepened. There was a sharp contest as to whether this ditch was merely cleaned out torts original and accustomed depth, as claimed by Fowles, or was actually deepened beyond its original depth, as claimed by the Royster Company. All those who participated in cleaning out the ditch testified that the ditch was not deepened; whereas, plaintiff relied upon the opinion of experts, based upon the character of the soil taken out. We cannot say that the preponderance of the evidence is against the conclusion of the Circuit Court that the ditch was not opened below its original depth. This being so, the Circuit Court committed no error in denying the relief sought with respect to the cleaning out and opening of the “old ditch” previous to the commencement of this action.
2
The Circuit Court further held that in November, 1903, the defendants partly opened an old ditch leading in the direction of the spring basin opposite the plaintiff’s works, and at the upper end of the ditch dug a new ditch for a few
yards, the effect of which was to divert the water from the spring basin in such a way that it could not enter the ditch of the plaintiff, cut for the purpose of carrying the water to its works, but that the Court had no right to make any order as to this partially old and partially new ditch, as the acts were done after the commencement of the action, and such relief was not within the scope of the complaint.
In this we think Judge Carey under-rated the power of the Court of equity under the pleadings in this case. Equity will not do justice by halves, but will render full and complete relief in determining the rights of the parties within the scope of the pleadings.
Phillips
v.
Anthony,
47 S. C., 463; 25 S. E., 294;
Butler
v.
Butler,
67 S. C., 212, 45 S. E., 184. If the diversion of the water of the spring from the Royster supply ditch by means of the new ditch is within the scope of the pleadings, relief should be had in this proceeding and not drive plaintiff to another action to test its rights in the premises. The complaint sets forth in full plaintiff’s claim to the water of the spring and pond, and alleges not only the actual diversion of such waters by opening and deepening the old ditch, but also further threatened diversion of said water in violation of the- grant, and the prayer of the complaint was for injunction to close and keep-closed the old ditch and from further diverting the water from said pond in any way or causing any further flow of water therefrom.
A temporary injunction herein was granted by Associate Justice Jones on June 33d, 1903, restraining defendants from further opening and deepening said ditch or further diverting the water from said spring and pond. Thereafter the “new ditch” was opened, and upon a rule to show cause why the defendants should not be adjudged' in contempt for disobedience of said order, it was adjudged on December 9th, 1903, that defendant had violated said temporary injunction and they were ordered to close said new ditch, which order was promptly obeyed. Thus, the digging of the new ditch was treated by all parties as within the scope
of the pleadings. While the complaint was designed to prevent breach of plaintiff’s rights by diverting the water of the spring and pond, the fact that some particular method of diversion not specifically mentioned in the complaint was adopted after the commencement of the suit would not make such act beyond the scope of the pleadings. On the contrary, it offered evidence that the injury threatened had become real during the pendency of the action. What is called the “new ditch” is but a branch extension of the old ditch and it really operated to divert the water of the Spring from the Royster supply ditch out through the old ditch, thus linking this particular act of diversion with acts specifically alleged in the complaint.
While we hold that defendants were within their rights, in so far as they, by their old ditch, drained away the water which plaintiffs did not see fit to use, but left ponded or stored on defendants’ premises, we also hold that they breached plaintiff’s rights when they, by their new ditch, interrupted the water flowing from the spring into the plaintiff’s supply ditch ready to receive it for plaintiff’s uses. The fact that defendants, in obedience to the order enforcing the temporary injunction, restored the status by closing the mouth of the new ditch, is no guarantee that the new ditch wdll not be again opened when such temporary injunction is made null by a decree dismissing the complaint. Judge Carey was, therefore, in error in not considering this matter and in not enjoining such diversion of water from plaintiff’s use. The case being now fully within the chancery powers of this Court, we will grant the relief to which plaintiff is entitled upon the undisputed facts.
We have not undertaken to consider in detail the numerous exceptions which, with Judge Carey’s decree, are reported herewith, but they are, in all material respects, controlled by the conclusions we have reached.
The judgment of the Circuit Court dismissing the complaint is reversed and the complaint retained for the purpose of enjoining defendants from diverting the water of the
spring from plaintiff’s supply ditch by means of defendants’ new ditch, and the defendants, their agents, servants and employees, are hereby required and commanded to close and keep closed said new ditch. In all other respects the conclusions and decree of the Circuit Court are affirmed.