Home/Supreme Court of South Carolina/McDaniel v. Walker

McDaniel v. Walker

24 S.E. 378, 46 S.C. 43, 1896 S.C. LEXIS 75
Supreme Court of South Carolina·Decided March 9, 1896·Published·Cited by 1 cases

Opinion

The opinion of the court was delivered by

Mr. ChiEE Justice McIver.

This was an action to recover damages for flowing the lands of the plaintiff by the waters of defendant’s mill-pond. A brief statement of certain undisputed facts is necessary for a proper understanding of the questions presented by this appeal. As far back as the year 1838, Joseph Hodge ond Owen Bockhart bought a large tract of land from H. D. Baw, upon which there was a mill-site; that as set forth in the answer of Owen Bock-hart, in the proceeding for partition, afterwards referred to, there was an agreement between those parties that what [50] was called the mill tract, containing 300 acres, upon which saw and grist mills were situated, “should be held in partnership, and the saw and grist mills kept up during their joint lives and the life of the survivor, at the joint expense of the said Joseph and this defendant, and that the profits, if any, should be equally divided and the losses equally borne;” that upon the death of Joseph Hodge a proceeding was instituted in the Court of Equity b}'- Gatsy Hodge and others, as heirs at law and devisees of said Joseph Hodge, against said Owen Lockhart, amongst other things, for a partition of said lands; that under said proceedings the lands were partitioned, and the portion containing the mill-site was allotted to Owen Lockhart, and other portions to the heirs and devisees of Joseph Hodge, as appears by a plat annexed to the “Case” — the portion marked A on said plat being allotted to Owen Lockhart, and the parcels marked G and F, with perhaps other portions, being allotted to the heirs and devisees of Joseph Hodge; that upon the death of Owen Lockhart, his lands were sold for division, and the lands embracing the mill-site were purchased by his son, W. J. Lockhart, under whom the defendant claims; that the plaintiff became the owner by intermediate conveyances of the parcel of land marked F on the plat above referred to, and the action is brought for flowing that parcel of land by the waters of the defendant’s mill-pond, the mill being on a water course known and designated on said plat as Deep Hole Swamp. It appears that the mill is located below. The parcel of land next above it on said water course is the tract marked G on the plat, and tract F is next above G. On the trial of the case the plaintiff offered in evidence, against the objection of the defendant, the record of two actions brought by Sallie C. Hodge and others, who were devisees and heirs at law of Joseph Hodge, then the owners of the tract G, against W. J. Lockhart, who was then the owner of the mill tract, now owned by the defendant herein, for the purpose of recovering damages for flowing said parcel of land, in both of which actions judgments were [51] recovered against the said W. J. Dockhart, from which there was no appeal.

[52]

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McDaniel v. Walker, 24 S.E. 378, 46 S.C. 43, 1896 S.C. LEXIS 75 (S.C. 1896).

24 S.E. 378 (McDaniel v. Walker) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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