6836

#### BURNETT v. POSTAL TELEGRAPH-CABLE CO.

1. Condemnation — Nonsuit.—Where it is doubtful if a telegraph company is a domestic or foreign corporation, it is improper to grant nonsuit on ground that condemnation is landowner’s remedy for location of line.

2. Ibid. — Ibid.—Telergaph Company. — But if defendant is treated as a domestic corporation, nonsuit was improper here, as condemnation only applies where entry is by permission, while here the permit was not put in evidence and the parol evidence tends to show defendant agreed to locate its line at a different place than where located, and the evidence as to paying damages is susceptible of the inference that the damages demanded and promised were for entry at a place agreed on and not the place actually occupied.

Before Purdy, J., -Spartanburg,

May, 1907.

Reversed.

Action by W. W. Burnett against Postal- Telegraph-Oable Company. From order of nonsuit, plaintiff appeals.

*Mr. Stanyame Wilson,*for appellant,

-cites: *Defendant had no right to go through land of plaintiff- without permission:*76 S. C., 98. *Defendant could noi go through at any plaice under permission to go at a particular plc&ce:*71 S-. C., 118; *Baldwin*v. *Tel. Co.,*78 S-. C.; *Voyles*v. *Tel. Co.,*78 S'. C. *Condemnation only applies when entry was by permission:*69 S-. C., 185. *Meaning of “permit:”*17 S-. C'., 183.

*Messrs Geo. H. Pearons*and *John Gary Bvcms,*contra.

*Mr. Bvans*cites-: *Permit did not say where line was to be located, and entry thereunder anywhere is not a trespass:*70 S, C., 530'; 71 S'. C., 153; 74 S. €., 55-8; 21 S. C., 430; 58 S, C., 544; 15 S, C., 177; 21 S’. C, 123; 62 S-. C., 52.

April 1, 1908.

The opinion of the Court was delivered by

Mr. Justice Jones.

The plaintiff brought this action against defendant to recover damages for trespass- upon his *463lands near Duncan’s, in Spartanburg County, by erecting its telegraph lines across the sarnie in reckless and wianton disregard of plaintiff's right. Defendant, by its answer, alleged! that it entered for the purpose off 'constructing its lines with the permission1 of plaintiff and after compensation therefor, and that more than twelve months had elapsed since said construction1, and plaintiff had not petitioned for an assessment oif damages under the condemnation statute. At the close of plaintiff’s1 testimony the Court granted defendant’s motion for a nonsuit on the ground that it appeared from' the testimony that defendant’s entry upon the lands of plaintiff wtas by his permission, expressed or implied, and that plaintiff’s remedy is under the condemnation statutes.

1 The appeal questions the correctness of this- ruling. We are of the opinion that the nonsuit was improper. In the first place, it does not dearly 'appear that the condemnation statute applies to this case. The complaint alleged 'that defendant is a corporation -d'ulliy chartered for ¡tire purpose, ¡among 'Other things, of carrying'1 on the business of telegraphic Communication between the cities of Spartanburg and Greenville -and other points, which allegation was denied in the answer ¡and no¡ proof was offered whatever to show whether defendant Was a domestic or foreign corporation. If defendant is¡ a foreign ¡corporation condemnation statutes do not apply. *Duke*v. *Postal Telegraph Co.,*71 S. C., 95, 50 S. E., 675; *Baldwin*v. *Postal Telegraph*Co., 78 S. C., 422. In each- of these cases an admission appeared in the record that the defendant therein, probable the same 'corporation as in this ¡case, was a foreign corporation. In this condition of uncertainty it would1 be improper to rest a nonsuit on the ground that plaintiff’s remedy was under the condemnation statutes.

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      *463But even if defendant must be treated as a domestic corporation, ¡authorized to proceed under the ¡condemnation statutes-, the nonsuit was improper. The nonsuit rests upon *464the theory that defendant entered and constructed its lines where it did with the permission of plaintiff. That is not the -only inference of which the testimony is susceptible. While defendant, on cross-examination of plaintiff, proved that he executed a certain written- permit, yet defendant did not see fit to introduce the instrument in evidence. Concerning this Judge Purdy said: “It is undisputed that plaintiff g’ave defendant a right to enter upon the land, because that comes from the agreement. Mr. Evans (counsel for defendant) read the contract, and while it was not put in evidence, the full terms of the contract were brought before the Court and jury and the concluding part of that paper says damages are to- be paid for injury done to growing -crops, and timber cu,t.”

The instrument in question not being -before the -Court we can- not say that plaintiff gave -defendant permission toi construct its lines upon, over and- across defendant’s land wfo-ereeve-r it mla-y choo-se to locate it. On the -contrary, the only te-s-tim-ony on that -subject is; by the plaintiff, who testified most positively that he only gave permission to defendant to construct its line over his land *along the dirt road.*It appears that plaintiff’s dwelling fronts' upon the public road ■between Spartanburg and Greenville, that the railroad ru-n-s between his house and the dirt road, that defendant erected its lines between- -plaintiff’s house and the railroad, that the line as- located by defendant went through plaintiff’s wheat field -and through some pine woods, that he sustained injury not only to -his wheat but -also in the cutting of his timber and to, his land in driving -over his terraces.

In answer to the question a-s to what took place between him and defendant’s agent when he signed the paper referred to, the plaintiff testified!:

> “A. He told- me they -wanted to- run around the dirt road, and if I would sign a paper, told me that all the men from Greers to -my home had signed it; -he had gotten permission to go through all the land, -and unless-1 consented -he would force me and go and would not p-ay me -any damages- — -that *465is about the conversation. He said be would not pay if I would not sign it, and they would force it through anyhow, and I just read a few words, on the paper and he tore off one and I signed it. Q. What did he tell you as to where he was going ? A. Told me they would go on the dirt road. I told him I would not sign a paper on this side of the railroad, for five hundred dollars for them, to1 go¡ through. I told bkni, being that I had signed for one mam.' I would sign for him! to go on the dirt road. Q. You would not let him go on your side of the railroad for five hundred dollars? A. Yes, sir; and he said be would force the line anywhere they wanted if I did not sign1 it. Q. If you did sign it,, where would it go ? A. Go on the dirt road, if I signed the paper. Q. That is the only permission you gave?' A1. Yes., sir. Q. Did you ever give any permission to' go¡ anywhere else? A. No, sir. Q. You say, when you saw themi there you said you were going to' make them' pay damages? A. Yes, sir. Q. You are trying to make them pay damages in this suit? A.- Yes, sir. Q. Did you ever. consent for them! to go where they did go>? A. No, sir, never did1. They come in there, but I never consented for it. Q. They told you they could go wherever they wanted to ? A. Yes, sir. Q. You said you would make thlemi pay for it? A. Yes, sir.”

In 'the absence of a valid writing to¡ the contrary, ilt is inferable froth the testimony that the only permission given was the right to1 construct along the dirt road and* that defendant in violation, of ’the permit constructed elsewhere. If so, such entry was not by permission but constituted a trespass. The condemnation, statutes apply when, the entry is by permission and 'the acts done or sought to be done are incident to the right granted. *Granger*v. *Tel. Co.,*70 S. C., 530, 50 S. E., 193.

But it is contended1 that after being aware that defendant was locating its line where it did, plaintiff made no protest but consented toi such entry upon am agreement by defendant to pay damages. This is based upon the following testimony of plaintiff:

> *466“Q. When did you first know that anybody had built a telegraph line across the field ? A. Well, they went through before I knowed. they were going through. There was a gentleman who came there ’and got leave to go> through the dirt road. Q. You gave himi leave? A. Yes, sir, on the dirt road. For that dirt road, I signed a paper for him to go on the dirt road, 'and be said be would not strike mly land only now and then. Q. You gave him permission toi go on tire land? A. I signed1 a paper to that effect. Q. You signed a paper allowing him to go on the land ? A. Yes, sir; to go next to the dirt road. Q'. Did he pay you anything for it? A. No, sir; he gave me a dollar. * * *

> “Q. You saw them1 raising the poles? A. Yes, sir. Q. Before they got them up? A. Yes, sir. Q. Did you say anything to them? A. Yes, sir. Q. When they were putting up the poles? A. Yes, sir. Q.You didn’t object to their going through, did you? A. I told themi they would have to pa}? me damages. Q. You didn’t object to their going through ? A. They were half through before I went to them. Q. When you got there you just told them they bad to pay you damages ? A. I told thiemi nay understanding— Q. They -agreed to pay you? A. Said they would pay me damages. Q. You knew! that ? A. Yes, sir. Q. You said you wanted -damages for going through? -A. They agreed to pay damages. Q. They agreed bo pay you damages for your crop and for the trees they cut down, -and for going over there? A. They -w'ould not agree to pay anything. They didn’t to me when I went to> them. Q. You signed this paper — did you read it?1 A. Noi, sir, I never read it; I never had my -specks. I was out in the field; he just read over -a few lines. Q. You sign your name that good Without your specks? A. Yes, sir. *Q.*'Then yon do not need specks much? A. That has been several years- ago. Q. You signed that where? A. I signed it out in the field. Q. So you were perfectly willing. A. He read -over to me something like that. I don’t know! whether fee read it correct or not. Q. We agree to pay damages to crop' and' timber? *467A. When- I -went to- this man, one of them there said hie would! not pay me damages. Q. You told them you expected damages for going through there? A. Yes, sir.”

A possible and reasonable view of this testimony is that when plaintiff said “they agreed to- pay damages,” he was referring to- the written- paper and agreement to construct along the dirt road in which the defendant agreed to pay damages to crops and timber, but that there was; no agreement to pay damages with respect to the line adopted by defendant, but the defendant had entered without the knowledge of plaintiff 'and uipon- ascertaining that fact he informed them! they would have to pay damages. This was not inconsistent with, the present suit for damages.

There 'being some testimony tending to- show that defendant trespassed upon plaintiff’s land to¡ his injury, it was error to grant a nonsuit.

The judgment of the Circuit Court is reversed and the case remanded for a new trial.