The opinion of the court ivas delivered by
Mr. Justice McIver.
The only question raised by the present appeal, which is the third one taken in the case, is as to the mode of trial, and hence it is only necessary to state so much of the proceedings as is necessary to a proper understanding of that question.
The first order upon this subject was granted by Judge Aldrich on October 30, 1882, whereby it was referred to a referee “to take the testimony in this ease, together with an account of all phosphate rock and phosphatic deposits dug, mined, or removed by defendants from the several creeks mentioned in the information herein, or any or either of them. That the said referee be, and he is hereby, authorized and empowered to hold references and take such testimony either in the Counties of [67]*67Beaufort or Charleston and any other county of this State, as the convenience of counsel or witnesses may require, or as he may deem necessary, and that the referee do report such testimony and account to this court.”
In pursuance of this order the referee took the testimony and reported the same to the court, upon which report and the exceptions thereto, the case ivas heard by Judge Wallace, who, after determining the main issues in the case, directed that it be re-referred to the same referee “to take testimony and report to this court what quantity of phosphate rock and johosphatic deposit have been taken from the beds of said creeks, and converted to the use of defendants, and the value of the same in its natural state and position ; and that the State of South Carolina is entitled to a judgment for the sum so ascertained.” From this decree both parties appealed upon the several grounds set out in the report of the case as found in 22 S. C., 50, but none of the exceptions raised any question as to the mode of trial of the issue undisposed of by the decree of Judge Wallace. On November 21, 1884, this court filed its decision in which the judgment of the Circuit Court, as therein interpreted, was affirmed. In that decision this court, without referring to the manner in which the reference was to be held, used this language: “We see no reason to doubt the correctness of the conclusion on the Circuit, that another reference was necessary. It may have the effect of preventing injustice. In regal’d to the principle on which the judge directed the damages to be ascertained, we see no error. We concur with him that the defendants mined in the beds of these streams running through their lands under an honest but mistaken belief of their right to do so.”
When the remittitur was sent down, an order was passed by Judge Fraser on February 10, 1885, after due notice to the counsel for defendants, making the judgment of the Supreme Court the judgment of the Circuit Court, in which the referee was directed “to take the testimony heretofore directed by the decree of this court, confirmed by the Supreme Court, with leave to hold references for that purpose either in the Counties of Beaufort or Charleston, as the convenience of the counsel or witnesses may require, or as he may deem necessary; and that the [68]*68referee do report such testimony to this court, with any and all exceptions thereto made by any party to this cause.” In pursuance of this order the referee reported the testimony, and the case was heard by Judge Cothran upon the testimony so reported. It appears from the minutes of the referee that at the first reference, held under the order of Judge Fraser, an entry was made in such minutes, by agreement of the counsel representing the several parties, in these words : “It is understood that the authority of the referee, under the order above set forth, is to take and report to the court the testimony produced before him.” Judge Cothran rendered his decree upon the testimony so taken, which upon appeal was reversed, not, however, upon any ground affecting the present inquiry, and the case remanded for a new-trial.
. When the ease was called by Judge Hudson for a new trial under the decision of the Supreme Court, a controversy arose between the parties as to the mode of trial — the plaintiff contending that the issue remaining to be tried, as to the amount of damages which the plaintiff is entitled to recover, must be tried by the court, upon testimony taken and reported by the referee, while the defendants contended that the mode of trial was already determined by the decree of Judge Wallace, affirmed by the Supreme Court, and that the trial must be by the referee. The judge held that the case being one in which the right of trial by jury was secured to both parties by the law, such a mode of trial could not be dispensed with except by consent, and that the previous -waiver of such right and consent to another mode of trial was not binding on the present trial; and he therefore ordered that the case be placed upon calendar 1 for trial by jury, unless the parties consented to some other mode of trial. From this order both parties have appealed upon the several grounds set out in the record, which need not be repeated here.
There can he no doubt that Judge Hudson was correct in ruling that the case was of such a character as that originally either party had a right to demand a tidal by jury; but we do not agree with him that the previous waiver of such right and consent to another mode of trial was no longer binding upon the parties. While it may be true that, in a case where the right of trial by-[69]*69jury has been waived, and the case has, by consent, been tried' by the court, and a new trial ordered by the Supreme Court, either party may, upon such new trial, insist upon his constitutional right of trial by jury, or vice versa, where such a case has' been tried by a jury and a new trial ordered, the parties may consent that such new trial shall be by the court instead of by the jury, yet we do not think that this would apply to the present case. Here the parties originally consented that the case, of. course meaning the whole case, should be tried by the court, upon testimony taken and reported by a referee, and accordingly, the main issues were so tried, leaving undetermined the single issue as to the amount of damages which the plaintiff was entitled to recover, and in such a case we do not think it competent for either pai^'to demand, or for the court to order, another mode of trial of the issue remaining undetermined, but that such issue must be tried in the same manner as the other issues which have been determined, unless the parties consent to substitute another-mode of trial for such undisposed of issue. The plaintiff having waived its right to a trial by jury upon the condition that the case, which, of course, embraces all the issues involved in it, should be tried by the court upon testimony taken and reported by a- referee, cannot now be forced into any other mode of trial; and the defendants having consented that all the issues should be tried by the court, and having enjoyed the benefit of that mode of trial so far as the main issues in the case are concerned, cannot now insist upon another mode of trial for the single issue undisposed of.
It is, however, strenuously urged by the counsel for defendants that the mode of trial which they demand has been conclusively determined by the decree of Judge Wallace, affirmed by this court. It is not perfectly clear to our minds that Judge Wallace intended, by the language which he used in ordering another reference, to interfere with the mode of trial agreed upon by the parties, and it is quite certain that this court had no such intention in affirming that decree.
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The opinion of the court ivas delivered by
Mr. Justice McIver.
The only question raised by the present appeal, which is the third one taken in the case, is as to the mode of trial, and hence it is only necessary to state so much of the proceedings as is necessary to a proper understanding of that question.
The first order upon this subject was granted by Judge Aldrich on October 30, 1882, whereby it was referred to a referee “to take the testimony in this ease, together with an account of all phosphate rock and phosphatic deposits dug, mined, or removed by defendants from the several creeks mentioned in the information herein, or any or either of them. That the said referee be, and he is hereby, authorized and empowered to hold references and take such testimony either in the Counties of [67]*67Beaufort or Charleston and any other county of this State, as the convenience of counsel or witnesses may require, or as he may deem necessary, and that the referee do report such testimony and account to this court.”
In pursuance of this order the referee took the testimony and reported the same to the court, upon which report and the exceptions thereto, the case ivas heard by Judge Wallace, who, after determining the main issues in the case, directed that it be re-referred to the same referee “to take testimony and report to this court what quantity of phosphate rock and johosphatic deposit have been taken from the beds of said creeks, and converted to the use of defendants, and the value of the same in its natural state and position ; and that the State of South Carolina is entitled to a judgment for the sum so ascertained.” From this decree both parties appealed upon the several grounds set out in the report of the case as found in 22 S. C., 50, but none of the exceptions raised any question as to the mode of trial of the issue undisposed of by the decree of Judge Wallace. On November 21, 1884, this court filed its decision in which the judgment of the Circuit Court, as therein interpreted, was affirmed. In that decision this court, without referring to the manner in which the reference was to be held, used this language: “We see no reason to doubt the correctness of the conclusion on the Circuit, that another reference was necessary. It may have the effect of preventing injustice. In regal’d to the principle on which the judge directed the damages to be ascertained, we see no error. We concur with him that the defendants mined in the beds of these streams running through their lands under an honest but mistaken belief of their right to do so.”
When the remittitur was sent down, an order was passed by Judge Fraser on February 10, 1885, after due notice to the counsel for defendants, making the judgment of the Supreme Court the judgment of the Circuit Court, in which the referee was directed “to take the testimony heretofore directed by the decree of this court, confirmed by the Supreme Court, with leave to hold references for that purpose either in the Counties of Beaufort or Charleston, as the convenience of the counsel or witnesses may require, or as he may deem necessary; and that the [68]*68referee do report such testimony to this court, with any and all exceptions thereto made by any party to this cause.” In pursuance of this order the referee reported the testimony, and the case was heard by Judge Cothran upon the testimony so reported. It appears from the minutes of the referee that at the first reference, held under the order of Judge Fraser, an entry was made in such minutes, by agreement of the counsel representing the several parties, in these words : “It is understood that the authority of the referee, under the order above set forth, is to take and report to the court the testimony produced before him.” Judge Cothran rendered his decree upon the testimony so taken, which upon appeal was reversed, not, however, upon any ground affecting the present inquiry, and the case remanded for a new-trial.
. When the ease was called by Judge Hudson for a new trial under the decision of the Supreme Court, a controversy arose between the parties as to the mode of trial — the plaintiff contending that the issue remaining to be tried, as to the amount of damages which the plaintiff is entitled to recover, must be tried by the court, upon testimony taken and reported by the referee, while the defendants contended that the mode of trial was already determined by the decree of Judge Wallace, affirmed by the Supreme Court, and that the trial must be by the referee. The judge held that the case being one in which the right of trial by jury was secured to both parties by the law, such a mode of trial could not be dispensed with except by consent, and that the previous -waiver of such right and consent to another mode of trial was not binding on the present trial; and he therefore ordered that the case be placed upon calendar 1 for trial by jury, unless the parties consented to some other mode of trial. From this order both parties have appealed upon the several grounds set out in the record, which need not be repeated here.
There can he no doubt that Judge Hudson was correct in ruling that the case was of such a character as that originally either party had a right to demand a tidal by jury; but we do not agree with him that the previous waiver of such right and consent to another mode of trial was no longer binding upon the parties. While it may be true that, in a case where the right of trial by-[69]*69jury has been waived, and the case has, by consent, been tried' by the court, and a new trial ordered by the Supreme Court, either party may, upon such new trial, insist upon his constitutional right of trial by jury, or vice versa, where such a case has' been tried by a jury and a new trial ordered, the parties may consent that such new trial shall be by the court instead of by the jury, yet we do not think that this would apply to the present case. Here the parties originally consented that the case, of. course meaning the whole case, should be tried by the court, upon testimony taken and reported by a referee, and accordingly, the main issues were so tried, leaving undetermined the single issue as to the amount of damages which the plaintiff was entitled to recover, and in such a case we do not think it competent for either pai^'to demand, or for the court to order, another mode of trial of the issue remaining undetermined, but that such issue must be tried in the same manner as the other issues which have been determined, unless the parties consent to substitute another-mode of trial for such undisposed of issue. The plaintiff having waived its right to a trial by jury upon the condition that the case, which, of course, embraces all the issues involved in it, should be tried by the court upon testimony taken and reported by a- referee, cannot now be forced into any other mode of trial; and the defendants having consented that all the issues should be tried by the court, and having enjoyed the benefit of that mode of trial so far as the main issues in the case are concerned, cannot now insist upon another mode of trial for the single issue undisposed of.
It is, however, strenuously urged by the counsel for defendants that the mode of trial which they demand has been conclusively determined by the decree of Judge Wallace, affirmed by this court. It is not perfectly clear to our minds that Judge Wallace intended, by the language which he used in ordering another reference, to interfere with the mode of trial agreed upon by the parties, and it is quite certain that this court had no such intention in affirming that decree. But aside from this, there was no issue before Judge Wallace as to the mode of trial, and therefore anything that he may have said upon that subject was outside of the issues he was called upon to determine, and can scarcely be [70]*70regarded as res adjudicata. This is the view which was manifestly taken by all the parties to the case, for when Judge Fraser was applied to upon due notice for an order to make the judgment of the Supreme Court, affirming the decree of Judge Wallace, the judgment of the Circuit Court, and to carry the same into practical effect, by requiring the referee to take and report the testimony in accordance with the original agreement as to the mode of trial, embodied in the order of Judge Aldrich, there was not only no objection interposed by counsel for defendants, but, on the contrary, at the first reference held under that order, there was an entry made on the minutes, by agreement of counsel, showing that the same mode of trial originally agreed upon was to be preserved.
Again, it is urged that when the parties to a case entitled to a trial by jury have waived such right, and consented to a trial by the court, it is within the power of the court to order that all or some of the issues be referred to a referee to hear and determine the same, as an aid to the court in rendering its judgment, even without the consent of the parties. To this proposition we cannot assent. The right to refer a case to a referee for trial rests upon the consent of the parties, and the only exceptions to this general rule are those laid down in section 293 of the Code. Now, as was said in Smith v. Bryce (17 S. C., at page 513), “It is true that the language used in section 295 [now section 293] of the Code seems to be broad enough to authorize a reference, without the consent of the parties, in any case where the examination of a long account is necessary, but this language must be construed as applying only to those cases in which a trial by jury is not secured to the parties, in order to avoid a conflict with that provision of the constitution guaranteeing that right.”
It seems to us, therefore, that when a case is of such a character as to entitle the parties to a trial by jury, as this case has heretofore been determined to be, it can only be tried in that way, or in some other way to which the parties have consented, and that no other mode of trial can be substituted for that guaranteed by the constitution, except by consent. In this case both parties consented that the trial should be by the court, upon testimony taken and reported by a referee, and a portion of the issues [71]*71have been so tried, and those remaining undisposed of must be tried in the same way, unless both parties consent to substitute some other mode of trial for the issues not yet determined.
The judgment of this court is, that the order appealed from be reversed, and that the case be remanded to the Circuit Court for such further proceedings as may be necessary to carry out the. views herein announced.