April 28, 1908. The opinion of the Court was delivered by
This is an appeal from an order refusing a motion made by the defendant to transfer the case from Calendar No. 1 to Calendar No. 2, for trial by the Court, and for a general order of reference; and failing in that, then for an order of reference to take the testimony.
The complaint alleges that the plaintiffs own a certain tract of land, situate on the waters of Allison Creek, which flow into the Catawba River, above a dam which was built by the defendant under a statute of this State conferring such authority.
It is further alleged that the defendant maintains the dam across the river below plaintiff's land to the height of thirty feet, whereby it has obstructed the water in the river and creek, has overflowed said lands, has rendered them unfit for agricultural purposes and dangerous to health.
It is further alleged that the statute under which the dam was erected is unconstitutional, and that the acts of the defendant constituting a taking of the plaintiff's property.
The complaint demands damages to the amount of $22,000, and also for an injunction restraining the defendant from maintaining and using said dam.
There are several reasons why the motion made by the defendant was properly refused:
1. The case of Threatt v. Brewer Co., 42 S.C. 92" court="S.C." date_filed="1894-07-27" href="https://app.midpage.ai/document/threatt-v-brewer-mining-co-6678298?utm_source=webapp" opinion_id="6678298">42 S.C. 92,19 S.E., 1009" court="S.C." date_filed="1894-07-27" href="https://app.midpage.ai/document/threatt-v-brewer-mining-co-6678298?utm_source=webapp" opinion_id="6678298">19 S.E., 1009, is conclusive as to the right of the plaintiffs to a trial by jury of the legal issues relating to damages. In that case the Court uses this language: "There can be no doubt that a claim for damages which, prior to the Code, would have been enforced by an action on the case, is a purely legal demand, triable by a jury, and the fact that with such demand there was united an equitable demand for an injunction can not deprive the action of its nature as an action at law triable by a jury."
2. The plaintiffs allege that they are the owners of the land described in the complaint, and the defendants, by their answer, deny these allegations, thereby making an issue of title upon which either party had the right to a trial by jury.Alston v. Limehouse, 60 S.C. 559" court="S.C." date_filed="1901-06-22" href="https://app.midpage.ai/document/alston-v-limehouse-3885712?utm_source=webapp" opinion_id="3885712">60 S.C. 559, 39 S.E., 188" court="S.C." date_filed="1901-06-22" href="https://app.midpage.ai/document/alston-v-limehouse-3885712?utm_source=webapp" opinion_id="3885712">39 S.E., 188; Johnson
v. Jones, 72 S.C. 270" court="S.C." date_filed="1905-08-01" href="https://app.midpage.ai/document/johnson-v-jones-3875409?utm_source=webapp" opinion_id="3875409">72 S.C. 270, 51 S.E., 805" court="S.C." date_filed="1905-08-01" href="https://app.midpage.ai/document/johnson-v-jones-3875409?utm_source=webapp" opinion_id="3875409">51 S.E., 805; Corbett v. Fogle, 72 S.C. 312" court="S.C." date_filed="1905-08-03" href="https://app.midpage.ai/document/corbett-v-fogle-3879148?utm_source=webapp" opinion_id="3879148">72 S.C. 312,51 S.E., 884" court="S.C." date_filed="1905-08-03" href="https://app.midpage.ai/document/corbett-v-fogle-3879148?utm_source=webapp" opinion_id="3879148">51 S.E., 884.
3. The complaint alleges that the rights of the plaintiffs were invaded recklessly, wantonly and wilfully. Under
such allegations the plaintiffs had the right to claim punitive damages, which can not be awarded by the Court in the exercise of its chancery powers. Welborn v. Dixon, 70 S.C. 108" court="S.C." date_filed="1904-11-10" href="https://app.midpage.ai/document/welborn-v-dixon-3875847?utm_source=webapp" opinion_id="3875847">70 S.C. 108,49 S.E., 232" court="S.C." date_filed="1904-11-10" href="https://app.midpage.ai/document/welborn-v-dixon-3875847?utm_source=webapp" opinion_id="3875847">49 S.E., 232.
4. The discretion of his Honor, the Circuit Judge, was properly exercised. Knox v. Campbell, 52 S.C. 461" court="S.C." date_filed="1898-06-29" href="https://app.midpage.ai/document/knox-v-campbell-6679359?utm_source=webapp" opinion_id="6679359">52 S.C. 461,30 S.E., 485" court="S.C." date_filed="1898-06-29" href="https://app.midpage.ai/document/knox-v-campbell-6679359?utm_source=webapp" opinion_id="6679359">30 S.E., 485; DuBose v. Kell, 76 S.C. 313" court="S.C." date_filed="1907-03-15" href="https://app.midpage.ai/document/dubose-v-kell-3876348?utm_source=webapp" opinion_id="3876348">76 S.C. 313.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.
April 28, 1908.
After careful consideration of the within petition for a rehearing, the Court is satisfied that no material question, either of law or of fact, has been disregarded or overlooked.
It is, therefore, ordered that the petition be dismissed and that the order heretofore granted staying the remittitur be revoked.