35 S.C. 146 | S.C. | 1892
The opinion of the court was delivered by
This case has been in this court before (see 33 S. C., 175), where the facts are stated. Briefly, it appears that M. Elizabeth Leech and her four minor children, Mary Y. Leech, Joseph W. Leech, Samuel Leech, and John S. Leech, are tenants in common of a certain tract of land which descended to them as heirs at law of Joseph W. Leech, deceased, over which tract of land the plaintiffs railroad has been constructed ; that Mrs. Leech, the only adult tenant in common, had granted to the said company the right of way, to enter upon and construct “on each and every parcel of land belonging to her, the said M. Elizabeth Leech,” &c.; that when the railroad was completed through the land the minor children, the other tenants in common, filed their petition in the Court of Common Pleas, praying that the railroad company should be required to make proper compensation for the damage done to their interest, and also praying an assessment for damages to the whole tract by the construction of the road thereon. Thereupon the railroad company brought this action, making all the co-tenants parties, to enjoin the proceeding of the minors and to require Mrs. Leech, their grantor of the right of way, to have partition made of the lands, &e. After various proceedings, which need not be referred to here, this court, upon appeal, reversed the judgment which had been made below, and remanded the case to the Circuit “for the purpose of enabling the Circuit Court to proceed with the partition, in the meantime suspending further proceedings under the petition filed by the minor defendants until the partition has been effected. The question as to how the partition shall be made, and the claim made by the complaint to subject the share of Mrs. Leech to the payment of any amounts which the plaintiff may be required to pay the minor co-tenants by way of compensation or damage, not having been considered by
Accordingly the case went back, and coming on again for trial before his honor, Judge Witherspoon, he held that section 1830 of the General Statutes must control the procedure in partition, and that although the application for partition was not her voluntary act, Mrs. Leech, and not the railroad company, must be regarded as the real “plaintiff” in the sense of the section aforesaid. And so ruling he directed a writ of partition to issue, conforming in all respects to the requirements of the section (General Statutes) aforesaid, adding : “The clerk shall insert in the writ a special direction to the commissioners that they must, if the same be practicable, other things being equal, partition the said lands, so that the railroad bed and right of way of the railroad company shall lie upon the part (if any) assigned to Mrs. Leeeh ; -and if not the entire railroad bed and right of way, then as much thereof as the commissioners shall find it practicable, other things being equal, to include upon the lands (if any) assigned to Mrs. Leech. The commissioners shall also be sworn to observe faithfully the said direction, and all other directions of the want, and impartially to carry into execution the said directions, and all other directions of the writ. The clerk will allow Mrs. Leech to name two of the five commissioners, J. Edward Leech, guardian ad litem, to name two more, and he will himself select the fifth. None of the five commissioners must be connected or related by blood, or in business with either Mrs. M. E. Leech or her said children, or the plaintiff herein, the railroad company,” &c.
From this order the railroad company appeals to this court on the grounds printed in the “Brief,” which, as we think, may be considered under two general propositions :
As we understand it, the law is binding upon the equity side of the court as well as the law side. Even before the union of the administration of law and equity by the same court, it was said by Chancellor Dunkin in Graydon v. Graydon (McMul. Eq., 63): “The terms of the act give the same authority to the Court of Common Pleas as to the Court of Equity. * * * It is believed that a strict observance of the requirements of the law will, in the end, prove the least troublesome, the least expensive, and the least tedious,” &c. This seems to have been the original view of the plaintiff company, for in its complaint there was the usual prayer “that a writ of partition be issued, directed to five commissioners, as provided by law,” &c. It will be observed that the issuing of the writ in partition does not preclude such special directions to the commissioners as may be thought proper- and equitable. See Buck v. Martin, 21 S. C., 593, and the authorities there cited.
Second. But it is further contended that if the usual procedure directed by the act cited is to control this case, his honor erred in holding that Mrs. Leech (and not the railroad company) is the “plaintiff,” within'the sense of the aforesaid section (General Statutes), and entitled to nominate two of the commissioners in partition. By the previous decision of this court, the plaintiff company as grantee of the right of way from Mrs.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.