The opinion of the court was delivered by
Mr. Justice Pope.
On the 28th. day of May, in the year 1894, the plaintiffs began this action against the defendant in the Court of Common Pleas for Edgefield County, in this State, for $1,950 damages, alleging as a cause of action that twelve or fifteen years ago, the Augusta Canal Company, unlawfully and without the consent of plaintiffs, caused to be built a dam across the Savannah River and upon their said lands, and did wrongfully dig up the same and make large excavations thereon, and built thereon a stone .dam; that said dam being built across said river caused the water therein to be backed up and raised far above its level in the natural flow of said stream, and thereby caused a large portion of the plaintiff’s tract of land, situate in Edgefield County, in this State, and consisting of 835 acres, and which lies next to and adjacent to said river, and which was formerly cultivated, to become so sobbed and saturated by said back water as to be unfit for agricultural purposes, and necessitated the abandonment of the same for planting purposes; and the plaintiffs further charge that the back water . caused in the said river by the erection of said dam has caused a “considerable portion of their said tract of land to be overflowed and rendered useless, and thereby, and on account of said sobbing and overflowing of said lands, deprived the plaintiffs of the use of the same.” The plaintiffs further alleged that the defendant, for the past twelve years, pretends to have acquired said dam, and “that, in disregard of the plaintiffs’ rights, the defendant has ever since entered upon their (the plaintiffs’) said lands, and have, during the *30whole of said period, maintained said dam, and have continuously thereby caused a large portion of the plaintiffs’ said tract of land, which lies next to and adjacent to • said Savannah River, and which was formerly cultivated, to become so sobbed and saturated by said back water, as to be unfit for agricultural purposes, and have necessitated the abandonment of the same for planting purposes; and also that the back water, caused in said river by the erection of said dam, has caused a considerable portion of their said tract of land to be overflowed and rendered useless, and thereby, and on account of the said sobbing and overflowing of said land, deprived the plaintiffs of the use of the same;” and plaintiffs also allege that the defendant, by means of the said dam so erected and maintained, has caused the ordinary freshets in said Savannah River to overflow the plaintiffs’ lands, which, before said dam was erected, was not subject to overflow by ordinary freshets in said river, rendering said lands unfit for use as agricultural lands, thereby necessitating an abandonment of the use of said, lands for planting purposes — -all of which have damaged the plaintiffs #1,950. On the said 28th. of May, 1894, caused warrant of attachment to issue out of the Court of Common Pleas for Edgefield County, in this State, through the clerk thereof, and under the same the sheriff attached a portion of defendant’s land lying in said Edgefield County, in this State.
Thereafter the defendant, the city council of Augusta, appeared in said action, and duly answered the complaint on the merits. When the action came on for trial before his honor, Judge Benet, and a jury at the'fall term, 1894,. of the Court of Common Pleas for Edgefield County, the defendant demurred to the complaint on two grounds— want of jurisdiction of the person of defendant, and, secondly, because the complaint failed to state a cause of action. The demurrer was overruled on both grounds. Prom this decision the defendant appealed, and such questions are raised for the decision of this court. We will consider these grounds now.
*311 As to the ground of appeal relating to jurisdiction, it will be necessary to state the facts upon which it was heard in the court below. Briefly stated, they are as follows: When the action was commenced on the 28th. May, 1894, the clerk of the Court of Common Pleas for Edgefield County did not, by his own hand, sign the warrant of attachment, but having to be absent from his office on that day, and having been apprised that the warrant of attachment would be applied for, he directed John Kennerly, Esq., who acted as his deputy, to sign his name for him and attach the seal of his office as clerk of court to said warrant of attachment. This fact was not known to the defendant; the copy served upon it, of course, did not disclose this alleged defect. Hence, supposing that the warrant of attachment and the proceedings thereunder were regular, the defendant appeared by counsel and made its answer to the merits. Since that time, it has discovered what it alleges is a fatal irregularity in the warrant of attachment, and now seeks not to set aside the warrant of attachment, but actually to claim that its answer to the complaint on the merits shall be ignored. The fault, if any, consisted in the neglect of the defendant to scrutinize for itself the original warrant of attachment, and, if this fact of substituted signing by the clerk existed, to have adopted a course in law to avoid such warrant of attachment. All of these matters are considered in our recent case of Tillinghast v. Boston &c. Co., 39 S. C., 484, where reliance was had upon Pennoyer v. Neff, 95 U.S., 714" court="SCOTUS" date_filed="1878-01-21" href="https://app.midpage.ai/document/pennoyer-v-neff-89656?utm_source=webapp" opinion_id="89656">95 U. S., 714, and we will not, therefore, address ourselves to unfolding the law governing jurisdiction of the person acquired by the issuance of a warrant of attachment, and attaching thereunder the real estate of a foreign corporation situated in this State. It may be well, also, to refer to the more recent case of McCreery v. Davis, 22 S.E., 178" court="S.C." date_filed="1895-04-20" href="https://app.midpage.ai/document/mccreery-v-davis-6678523?utm_source=webapp" opinion_id="6678523">22 S. E. Rep., 178. But we have heretofore expressly ruled that when any one — foreign corporation, or a non-resident person or firm — appears and answers to the merits, by that voluntary act the court acquires jurisdiction of the person *32of the defendant, and jurisdiction of the person once acquired, for all the purposes of the action the court may maintain the same. See Gravely v. Gravely, 20 S. C., 93; Chafee v. Postal Tel. Co., 35 S. C., 372, and other cases decided since those cases. We must sustain the Circuit Judge in overruling the demurrer on this ground.
2 It remains to consider the question whether the complaint states a sufficient cause of action? We think it does; as was very clearly pointed out by the Circuit Judge, this is not the case against a railroad, telegraph, or turnpike company, for an improper use of a public franchise, entitling the holder of the public franchise to enter upon the lands of another under the warrant of legislative power, through the well recognized and, we may say, the well defined doctrine of eminent domain. But it is a case where the complaint alleges an injury to the plaintiffs by reason of a stone dam so changing the volume of the water of the Savannah River alongside of plaintiffs’ lands, that when, before the dam was built, such lands were used for the purpose of raising crops thereon, and which lands, since the dam was built, by reason of damming up the waters of said river, not only are so permeated by the waters of said river at ordinary times as to render such lands useless, but that freshets of ordinary height, which, before said dam was built, did not get beyond the banks of said river, now overflow said banks of the river, and render useless for cultivation the lands of plaintiffs adjacent to said river. We think the complaint states facts sufficient to constitute a good cause of action. There was, therefore, no error in overruling both grounds of demurrer.
After the demurrer was overruled, the defendant interposed its answer, which, substantially, lays bare these facts as a defence to plaintiffs’ action. In the year 1845, the legislature of the State of Georgia chartered the Augusta Canal Company, whose object was to lead into the city of Augusta the waters of the Savannah River, and for this purpose a dam was projected into that river to give an im*33petus to the waters of that stream to flood the canal. In the year 1871, dreams of a richer fruition, including that of a full supply of drinking water from the canal in question, induced the legislature of Georgia to increase the powers of that company already chartered. Soon afterwards, in the year 1873, the legislature of the State of South Carolina created, by charter, the Edgefield Cotton and Woolen Manufacturing Company, vesting in said company the right to run a dam across the Savannah River, beginning at a point below the mouth of Big Stevens Creek, on the South Carolina side, and running across to the Georgia side at a point not more than 1,000 yards below Red Bank Creek. The parties obtaining this last charter organized thereunder, and purchased more than three acres of land on the South Carolina side of the river and on the banks thereof, for the purposes connected with said dam across the Savannah River, from H. H. Townes, the elder, who styled himself trustee for his wife, Sallie V. Townes, who, it turns out, held the lands now owned by the plaintiffs as a life tenant therein, with remainder thereafter to the plaintiffs, at the price of $500 in cash. On the same day, in October, 1873, that the foregoing deed of the three acres was made to the South Carolina corporation, the said H. H. Townes, senior, as trustee of his said wife, made this agreement with the Augusta Canal Company: “Georgia, Richmond County. This agreement made and entered into this 18th. day of October, A. D. 1873, between Henry H. Townes, as trustee for Sallie V. Townes, of the county of Edgefield and State of South Carolina, of the first part, and the Augusta Canal Company, a corporation chartered by the laws of the State of Georgia, of the county first aforesaid, of the second part — witnesseth: that the said party of the first part, in consideration of the sum of $500 to him in hand paid by the said party of the second part (the receipt whereof is hereby acknowledged), has agreed, and by these presents doth agree, that the said party of the second part, as its assigns, may build upon the lands of the party of the first *34part, lying and being in the Savannah River, in the county of Edgefield and State of South Carolina, opposite the head of the Augusta Canal, the abutment and walls of a dam to be constructed across the Savannah River at said point, sufficient to keep a depth of eleven feet of water in proposed enlarged canal of the party of the second part; provided, that the same shall not (be) more than four feet above the abutment wall of the present dam of said company. And the said party of the first part further agrees, that in case the said company shall build said dam, that said company shall be allowed to enter upon and take from said lands, at any point they may select, within fifty yards of the bank of the said Savannah River, stone, gravel, earth, and other materials for building said dam and keeping it in repair. And the said Henry H. Townes, as trustee as aforesaid, in consideration of the aforesaid sum of $500 to him paid, and the agreement of the said party of the second part, hereinafter named [italics ours], hereby grants, conveys, and confirms unto the party of the second part, its successors and assigns, in perpetuity, the right, privilege, and easement of building said abutment and walls, and taking and using said stone, gravel, earth, and other materials as aforesaid. It is further agreed by said party of the second part, that the said party of the first part, his successors and assigns, shall be allowed to draw from the water of the said canal company, to his mill now erected on said land on said Savannah River, water equal to thirty horse power, and also navigation through said- canal with his boat, to transfer cotton and other produce and s^tpplies to and from the city of Atigtista, free of toll [italics ours]. It is further agreed that the opening and gates for water to supply the mill and machinery of the party of the first part shall be made at the expense of the party of the second part. The said party of the first part further agrees that he will not grant or allow to any other person or persons, natural or artificial, the right to any,water power, or to draw water for propelling machinery through or over his lands, except the thirty horse power *35hereinbefore referred to. And the said party of the first part hereby releases, relinquishes, and forever discharges the said party of the second part, and its successors and assigns, from any and all damage, injury, loss or detriment that may be caused to said land by the erection of said dam and the abutment and walls aforesaid from overflow, and in any other manner whatever. It is further agreed that the said party of the second part may, at option, in lieu of cutting a raceway to said mill, move said mill and the machinery and fixtures connected therewith up to said dam, or so near to the same as said company may decide. In witness whereof the said party of the first part has hereto set his hand and seal, and the said company has caused these presents to be signed by its president, having no seal or secretary.
“Henry H. Townes, (e. s.) Trustee for Sallie V. Townes.
“Chas. Estes, (e. S.) President Augusta Canal Company.”
The defendant’s answer further shows: That the dam was constructed by the Augusta Canal Company in the years 1873 and 1874; that all the privileges set out in the contract by and between Henry H. Townes, as trustee for his wife, Mrs. Sallie V. Townes, of the first part, and the Augusta Canal Company, of the second part, have been accorded to the said Henry H. Townes, as said trustee of his wife during her life, and since her death and up to the attainment of the age of twenty-one years of the plaintiffs respectively, to the said Henry H. Townes as their guardian, and since said plaintiffs have attained their majority, with and to them; that at the present time the plaintiffs are in the enjoyment of the water privileges under said contract; that said dam was constructed without any protest from any of them; that the dam has not injured the lands as complained of by the plaintiffs; that the plaintiffs have not been damaged at all.
Upon these pleadings the parties went to trial. Plaintiffs offered testimony to show their title to land in dispute as devised under the will of their great-grand-father, John Jones; that their mother, Mrs. Sallie V. Townes, died in *361877; that their father had been appointed her trustee in the year 1869, before she attained her majority, and that she reached the age of twenty-one years in 1872. But no testimony was introduced to show that the defendant or the Augusta Canal Company had violated the terms of the contract hereinbefore recited at length. At the conclusion of plaintiffs’ testimony defendant moved for a nonsuit, which was refused.
3 *374 *36The defendant then unfolded its defence. At the conclusion of all the testimony, it again moved for a nonsuit, which was again refused. The refusal of the Circuit Judge to grant the motion for a nonsuit is made the ground of appeal. Was it error on the part of the Circuit Judge to refuse to grant the motion for a nonsuit? We think it was, for these reasons: on the demand of the Circuit Judge to know if the plaintiffs demanded that the dam should be removed, the plaintiffs replied, through their attorney, Mr. Croft, that they did not demand the removal of the dam; so that the naked question was one of damages for the backing of water upon their lands, so that it was not cultivated, and, also, that by reason of that dam, the ordinary freshets in the river would cause the water from the river to overflow their lands adjacent to the river, thereby rendering them unfit for cultivation. Now, granting that Henry H. Townes, when he claimed to act as trustee for his wife, Mrs. Sallie V. Townes, and made a contract with the Augusta Canal Company, whereby he stipulated that the said company might build the dam across the river, and also stipulated for thirty horse power of water power to run his mill, &c., had no legal power to make such contract so as to bind his wife, or to bind the plaintiffs. Mrs. Townes afterwards would have been able to confirm the unauthorized act of her trustee. Grant that, even if she did or did not confirm such conduct of her trustee, and such a contract could not, of itself, be made to operate upon the rights of these plaintiffs, who did not receive these lands through her, but as purchasers under John Jones’ will, yet it *37was, and is now, in their power to make that contract effectual. This may be done directly or it may be done indirectly; it might have been by a deed or other solemn contract; again, it might haye been done, not by a deed or other solemn contract, but, just as effectually, by conduct. When the plaintiffs held on to the benefits under the supposed deed between Henry H. Townes, as trustee of his wife, Sallie V. Townes, and the Augusta Canal Company, by holding fast to the use of the thirty horse power of water power with which to propel their mill and machinery, furnished by the dam, constructed under such contract, they tied themselves, hands and feet, so to speak. The law wisely says you shall not receive the benefits of a transaction and at the same time refuse to bear the burdens incident to such a transaction. As to a deed, for instance, you cannot cling to its benefits and at the same time refuse -its burdens. So as to wills. There was no testimony in the case which showed that these plaintiffs did not still cling to these water privileges, but the testimony was to the contrary. ,- This being so, it was error in the Circuit Judge to refuse the motion for a nonsuit. Such being the conclusion at which we have arrived, it is unnecessary for us to pass upon the other interesting questions raised by the appeal, for they cannot be said to fairly arise upon the record.
5 While I think the following should be our judgment: “It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the action be remitted to the Circuit Court, with directions that the Circuit Court grant a judgment for a nonsuit.” Still, as the majority of the court think and hold that our judgment should be confined to holding it error in the Circuit Court not to have granted the nonsuit demanded by defendant, and to ordering the cause back to the Circuit Court for a new trial, such will have to be the form of 'the judgment. Accordingly, it is the judgment of this court, that the *38judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court for a new trial.
Mr. Chief Justice McIver.
While I agree that there was error in refusing the motion for a nonsuit, I am not prepared to hold, either that this court should now order a nonsuit or remand the case to the Circuit Court, with instrv-ctions to grant a nonsuit. On the contrary, it seems to me that the proper course is to reverse the judgment of the Circuit Court, and to remand the case for a new trial, under the authority of the cases of Willis v. Knox, 5 S. C., 474, and Sampson v. Singer Mfg. Co., 5 S. C., 465, in which latter case it is said: “If the nonsuit was improperly refused, and the nature of the plaintiffs’ demand was such that no recovery could be lawfully had, this court will grant the motion, and dismiss the plaintiffs’ complaint. If, however, it was merely a case of insufficienc3’' of proofs adduced at the trial to support a cause of action in itself of a proper legal nature, this court will not dismiss the complaint upon appeal, but order a new tri^l, to afford the plaintiff an opportunity to make better proofs.” These two cases have been recognized in the following subsequent cases: Carter v. R. R. Co., 19 S. C., at page 30; Carrier v. Dorrance, 19 S. C., at page 34; and DeCamps v. Carpin, 19 S. C., at page 126. See, also, Wiggins v. Vaught, Cheves, 91.
Mr. Justice Gary. I concur in the views expressed by Chief Justice McIver.