The opinion of the Court was delivered by
Mr. Justice Marion.
Action for injunction and for damages claimed to have been sustained by plaintiff on account of alleged unlawful ¿rítry and cutting of timber upon and building and operation of a lumber railroad across his interest in a tract of 856 acres of land, known as the Lykes Place, in Richland County. The complaint alleges that the plaintiff Williams, and Dr. G. A. Blackburn, on June 8, 1910, purchased front Lawrence B. Owens said Lykes Place,
subject to an outstanding conveyance of the timber rights by Owens to one Carrison, which rights were afterwards acquired by the defendant Bruton; that the timber rights under the Carrison deed expired on January 1, 1917; that in April, 1916, the defendant Bruton, holder of the Carrison timber contract, contracted, with Blackburn, plaintiff’s cotenant, for an extension of the timber rights granted in the Carrison deed,, and for the right to construct and operate a railway on the land; that subsequently the interest of Blackburn in the land was acquired by Dr. E. C. E. Adams; that a partition in kind was had between the plaintiff and Adams; that the defendant Bruton, his agents and servants, and certain other defendants named, had, without consent of plaintiff, and against his protest, unlawfully entered upon said tract and upon the portion since allotted and conveyed to plaintiff in severalty, and had cut down and carried away a large quantity of timber, had opened^ up a right of way of 50 feet in width, and built and operated thereon a railway, etc; that thereby plaintiff had been injured and damaged; and that such injuries and trespasses were continuing at the time of the commencement of the suit. The answers of defendants put in issue the material allegations of the complaint. The cause came on to be heard before Hon. Hayne F. Rice, Circuit Judge, who filed a decree awarding a permanent injunction to plaintiff, and referring it back to the master to ascertain the damages sustained by the- plaintiff. From this decree, which will be reported, the defendant Bruton appeals upon exceptions which raise substantially the following points:
(1) That the Circuit Judge erred in adjudging that the defendant Bruton was liable to plaintiff for damages on account of any cutting of timber prior to January 1, 1917, in that, by the terms of the Carrison contract acquired by Bruton, he was the absolute owner of all timber and trees on the Dykes Place, with the right of removal, up to January 1, 1917, and that, as an incident to such owner
ship, he had a right to use skidders or any other approved method of cutting down and removing the timber, including the right to use a railroad for such removal
(2) That his Honor should have found and decreed that Blackburn, as a tenant in' common of the land, had the right to convey a right of way for a railroad to Bruton over the entire tract of land, and that, having done so, Bru-ton was not liable for any damages on account thereof.
(3) That his Honor should have found and decreed that the sale by Blackburn to Bruton 'Was. with the full knowledge and. consent of Williams, and that Williams was estopped to deny that Bruton had thereby acquired a right of way for his railroad and also the right to cut all timber on the place under the terms of the Blackburn contract.
1. The question of law raised by the first point is to be resolved in contemplation of the following facts: The Carrison contract, of which Bruton was the owner and holder, conveyed unto Carrison “the timber and other trees standing, growing, and being” upon said Lykes Place, together with bough tops and bark of said timber and trees, “with full and free liberty of entry and right of way for the said vendee, his servants, agents, workmen, and teams in, through, over, and upon the said premises, for the purpose of felling, cutting down, and carrying away the said trees,” etc., and “to erect a saw mill thereon,” etc. The limit of time given vendee was 10 years from January 1, 1907, the date of the instrument. Under date of April 26, 1916, about eight months before the expiration of the Cai-rison contract, the defendant Bruton and Blackburn, plaintiff’s cotenant, entered into a contract, reciting among other things that Blackburn had contracted to purchase the plaintiff’s half interest in said lands, whereby Blackburn granted unto Bruton a right of way fifty feet in width for the purpose of building and operating a railroad across said lands, and agreed, in the event of the consummation of his
trade with Williams for his half interest in the lands, to convey to Bruton all the timber upon certain terms and subject to certain reservations, and, in the event the Williapis interest should not be acquired, to convey to Bruton the one-half interest of said Blackburn in the timber on the lands upon stipulated terms. It was further agreed that, if Blackburn did not acquire the rights of Williams, then Bruton was to indemnify Blackburn for any amount he might be required to pay Williams on account of; the grant of said right of way. Following the execution of this contract Bruton or his agents appear to have entered upon the land, to have constructed his railroad thereon, and to have proceeded with the cutting and removing of timber. To what extent that undertaking was carried prior to January 1, 1917, daté of expiration of the Carrison contract, does not satisfactorily appear from the record. It seems to be conceded, however, that Bruton continued to operate his timber railroad and to cut and remove timber after January 1, 1917, ancf up to September 20, 1919, the date of the commencement of this action. We are content with the Circuit Judge’s findings of fact upon this phase of the case to the effect that the railroad was constructed without the consent of Williams; that the timber on the Fykes Place could not have been profitably removed with teams; and that there is no reason to believe that Bruton would have removed it at all if he had not built the railroad .on the property. .
Upon the question of Bruton’s liability to the plaintiff, Judge Rice’s legal conclusions are thus stated:
“I think Bruton had up until January 1, 1917, in which to cut the timber off of the Fykes Place and haul off with teams, but he had no right to use a railroad and skidder for that purpose. Therefore the use of the latter instrumentalities was unauthorized so far as Williams is concerned, and, even prior to January 1, 1917, any damages that Williams may have suffered by reason of the use
of said railroad and skidder must be compensated for by Bruton. * * * I do not think Bruton should be held to be a willful trespasser upon the lands of Williams. Whatever rights Blackburn had in the timber, covered by the latter’s contract with Bruton, certainly passed to Bru-ton, and, as a division of the lands had not yet been had, Bruton and Williams were tenants in common of said timber. This being so, he could not be treated as a trespasser in disposing of property in which he had a one-half interest, but he should be held to account for whatever damages his cotenant suffered in such case.”
An essential premise of the conclusion thus reached is the holding that, under the terms of the Carri-son contract, the right to build a railroad on the land and to remove the timber by the use of a railroad and skid-der was not granted.
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The opinion of the Court was delivered by
Mr. Justice Marion.
Action for injunction and for damages claimed to have been sustained by plaintiff on account of alleged unlawful ¿rítry and cutting of timber upon and building and operation of a lumber railroad across his interest in a tract of 856 acres of land, known as the Lykes Place, in Richland County. The complaint alleges that the plaintiff Williams, and Dr. G. A. Blackburn, on June 8, 1910, purchased front Lawrence B. Owens said Lykes Place,
subject to an outstanding conveyance of the timber rights by Owens to one Carrison, which rights were afterwards acquired by the defendant Bruton; that the timber rights under the Carrison deed expired on January 1, 1917; that in April, 1916, the defendant Bruton, holder of the Carrison timber contract, contracted, with Blackburn, plaintiff’s cotenant, for an extension of the timber rights granted in the Carrison deed,, and for the right to construct and operate a railway on the land; that subsequently the interest of Blackburn in the land was acquired by Dr. E. C. E. Adams; that a partition in kind was had between the plaintiff and Adams; that the defendant Bruton, his agents and servants, and certain other defendants named, had, without consent of plaintiff, and against his protest, unlawfully entered upon said tract and upon the portion since allotted and conveyed to plaintiff in severalty, and had cut down and carried away a large quantity of timber, had opened^ up a right of way of 50 feet in width, and built and operated thereon a railway, etc; that thereby plaintiff had been injured and damaged; and that such injuries and trespasses were continuing at the time of the commencement of the suit. The answers of defendants put in issue the material allegations of the complaint. The cause came on to be heard before Hon. Hayne F. Rice, Circuit Judge, who filed a decree awarding a permanent injunction to plaintiff, and referring it back to the master to ascertain the damages sustained by the- plaintiff. From this decree, which will be reported, the defendant Bruton appeals upon exceptions which raise substantially the following points:
(1) That the Circuit Judge erred in adjudging that the defendant Bruton was liable to plaintiff for damages on account of any cutting of timber prior to January 1, 1917, in that, by the terms of the Carrison contract acquired by Bruton, he was the absolute owner of all timber and trees on the Dykes Place, with the right of removal, up to January 1, 1917, and that, as an incident to such owner
ship, he had a right to use skidders or any other approved method of cutting down and removing the timber, including the right to use a railroad for such removal
(2) That his Honor should have found and decreed that Blackburn, as a tenant in' common of the land, had the right to convey a right of way for a railroad to Bruton over the entire tract of land, and that, having done so, Bru-ton was not liable for any damages on account thereof.
(3) That his Honor should have found and decreed that the sale by Blackburn to Bruton 'Was. with the full knowledge and. consent of Williams, and that Williams was estopped to deny that Bruton had thereby acquired a right of way for his railroad and also the right to cut all timber on the place under the terms of the Blackburn contract.
1. The question of law raised by the first point is to be resolved in contemplation of the following facts: The Carrison contract, of which Bruton was the owner and holder, conveyed unto Carrison “the timber and other trees standing, growing, and being” upon said Lykes Place, together with bough tops and bark of said timber and trees, “with full and free liberty of entry and right of way for the said vendee, his servants, agents, workmen, and teams in, through, over, and upon the said premises, for the purpose of felling, cutting down, and carrying away the said trees,” etc., and “to erect a saw mill thereon,” etc. The limit of time given vendee was 10 years from January 1, 1907, the date of the instrument. Under date of April 26, 1916, about eight months before the expiration of the Cai-rison contract, the defendant Bruton and Blackburn, plaintiff’s cotenant, entered into a contract, reciting among other things that Blackburn had contracted to purchase the plaintiff’s half interest in said lands, whereby Blackburn granted unto Bruton a right of way fifty feet in width for the purpose of building and operating a railroad across said lands, and agreed, in the event of the consummation of his
trade with Williams for his half interest in the lands, to convey to Bruton all the timber upon certain terms and subject to certain reservations, and, in the event the Williapis interest should not be acquired, to convey to Bruton the one-half interest of said Blackburn in the timber on the lands upon stipulated terms. It was further agreed that, if Blackburn did not acquire the rights of Williams, then Bruton was to indemnify Blackburn for any amount he might be required to pay Williams on account of; the grant of said right of way. Following the execution of this contract Bruton or his agents appear to have entered upon the land, to have constructed his railroad thereon, and to have proceeded with the cutting and removing of timber. To what extent that undertaking was carried prior to January 1, 1917, daté of expiration of the Carrison contract, does not satisfactorily appear from the record. It seems to be conceded, however, that Bruton continued to operate his timber railroad and to cut and remove timber after January 1, 1917, ancf up to September 20, 1919, the date of the commencement of this action. We are content with the Circuit Judge’s findings of fact upon this phase of the case to the effect that the railroad was constructed without the consent of Williams; that the timber on the Fykes Place could not have been profitably removed with teams; and that there is no reason to believe that Bruton would have removed it at all if he had not built the railroad .on the property. .
Upon the question of Bruton’s liability to the plaintiff, Judge Rice’s legal conclusions are thus stated:
“I think Bruton had up until January 1, 1917, in which to cut the timber off of the Fykes Place and haul off with teams, but he had no right to use a railroad and skidder for that purpose. Therefore the use of the latter instrumentalities was unauthorized so far as Williams is concerned, and, even prior to January 1, 1917, any damages that Williams may have suffered by reason of the use
of said railroad and skidder must be compensated for by Bruton. * * * I do not think Bruton should be held to be a willful trespasser upon the lands of Williams. Whatever rights Blackburn had in the timber, covered by the latter’s contract with Bruton, certainly passed to Bru-ton, and, as a division of the lands had not yet been had, Bruton and Williams were tenants in common of said timber. This being so, he could not be treated as a trespasser in disposing of property in which he had a one-half interest, but he should be held to account for whatever damages his cotenant suffered in such case.”
An essential premise of the conclusion thus reached is the holding that, under the terms of the Carri-son contract, the right to build a railroad on the land and to remove the timber by the use of a railroad and skid-der was not granted. We are not inadvertent to the principle that, where a deed is susceptible of more than one construction, the words should be “more strongly construed against the grantor.” 13 Cyc. 609;
Foy v. Neal, 2
Strob. 156;
Peay v. Briggs, 2
Mill. Const. 98, 12, Am. Dec. 656. But in determining whether such doubt exists as to' require the application of that principle the deed should be read “in the light of all the circumstances surrounding the parties when the deed was executed, and also of their subsequent conduct relative to it.”
Stephens v. Long, 92
S. C. 65, 75 S. E. 530, and cases therein cited.
So construing the Carrison contract in the light of the holding of this Court in
Ellerbee v. Lumber Co., 99
S. C. at page 170, 82 S. E. at page 1051, that “the operation of a steam car on woodland is an uncommon burden on the servient estate, and ought to be the subject of special agreement,” we are of the opinion that the Circuit Judge’s interpretation of the Carrison instrument was correct. The right of way therein specifically granted was “free liberty of entry and right of way for the said vendee, his servants, agents, workmen and tenants.’’ That the right
to build and operate a railway, entailing the hazards of fire and other risks of injury, was not thereby granted seems to have been the construction placed upon the Car-rison contract by Bruton himself as evidenced by his purchase of the railroad right of way from plaintiff’s coten-ant, Blackburn.
If, then, Bruton’s building of the railroad and removal of timber by that means were not warranted under the Carrison contract his rights in relation thereto must be referred to the Blackburn conveyance. If it be conceded that Blackburn’s grant of a right of way to Bruton was sufficient to absolve him from liability as a technical trespasser
(Granger v. Tel. Co., 70
S. C. 531, 50 S. E. 193, 106 Am. St. Rep. 750), it does not follow that Blackburn’s cotenant, Williams, was without remedy for any actionable injury thereby resulting. The most liberal test for liability which the defendant Bruton is entitled to invoke is this: Suppose Blackburn himself had purchased the Carrison contract and had undertaken to remove the timber by January 1, 1917, by means of a railroad and skidder. The authorities are practically uniform in affirming the rule that, where cotenants hold by and under the same title, one cotenant cannot without the consent of the others buy in an outstanding adversary claim or title and assert it for his exclusive benefit to the injury and .prejudice of the interests of his cotenant. 39 Cyc., 40; 7 R. C. L., pp. 857, 858. If as such purchaser of the Car-rison contract Blackburn could only have made it effective to remove the timber on the common property by building a railroad, a right not thereby granted, his appropriation of the common property for the purpose of building such railroad in order to avail himself of the exclusive benefits of the Carrison contract would clearly have been in derogation of the equitable rights of his cotenant, Williams. Obviously, the authority which Blackburn conferred on Bruton could not be extended to cover acts resulting in in
jury to Williams which Blackburn himself could not legally do. 7 R. C. L. p. 910;
Omaha & Grant S. & R. Co. v. Tabor,
13 Colo. 41, 16 Am. St. Rep. 185; note 116 Am. St. Rep. 372. The application of the principles stated to the facts of the case at bar justifies the conclusion of the Circuit Judge.
2. As to the second proposition — that Blackburn as a tenant in common had a right to convey a railroad right of way over the entire tract, and that Bruton, as grantee, was not liable for any damages on account thereof — this Court has held that, where one tenant in common has granted a permit or license to a public service corporation to enter and construct its line, there is no foundation for an action of trespass in the absence of evidence of excessive or negligent use of the right granted.
Granger v. Postal Teleghaph Co.,
70 S. C. 528, 50 S. E. 193, 106 Am. St. Rep. 750;
Mason v. Telegraph Co.,
71 S. C. 153, 50 S. E. 782. Such grant may give the grantee an equity to require the grantor to exercise his right of partition in kind.
Railroad v. Leech,
33 S. C. 181, 11 S. E. 631; Id., 35 S. C. 146, 14 S. E. 730; Id., 39 S. C. 446, 17 S. E. 994. But one tenant in common cannot, as against his cotenants, by the conveyance of a specific easement in the common property, deprive his cotenants of their right to compensation or damages to the extent their interests are injuriously affected by such grant.
Railroad v. Leech,
33 S. C. 180, 11 S. E. 631;
Railway Co. v. Reynolds,
69 S. C. 481, 48 S. E. 476;
Foster v. Foster,
81, S. C. 307, 62 S. E. 320; 7 R. C. L. 884, § 79. The conclusion of the Circuit Judge upon this point is approved.
3. Appellant’s third contention, viz., that the plaintiff, Williams, was estopped to assert the liability of the defendant Bruton, as alleged, cannot be sustained. We agree with the Circuit Judge that the evidence does not establish that Bruton was misled to his prejudice by the conduct of Williams. The principle invoked
by appellant, that if one “knowingly suffers another to purchase and éxpend money on land under an erroneous opinion of title” he cannot afterwards be permitted to assert his legal right against that person
(Pollock v. Pegues, 72
S. C. 69, 51 S. E. 514;
Latimer v. Marchbanks, 57
S. C. 279, 35 S. E. 481), does not apply. By the express terms of the contract with Blackburn, Bruton was fully advised of the outstanding rights of Williams.
The exceptions are overruled, and the judgment of the Circuit Judge is affirmed.