6824

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

1. CONDEMNATION-TRESPASS-DEMAND.-WHERE A TELEGRAPH COMPANY has entered upon lands of another and erected poles and wires under a permit alleged by the landowner to have been obtained by fraud and misrepresentation, condemnation under the statute is not the landowner’s remedy for compensation, but action for trespass, and demand need not be made before action is brought.

2. Fraud — Wilfulness—Nonsuit.—There being some evidence tending to show permit was obtained by fraud, nonsuit on this ground was properly refused, and there being evidence here tending to show wilfulness, nonsuit on this ground, request to charge and new trial properly refused.

3. New trial moved for here on ground that condemnation was proper remedy; that no action for trespass lies; that there was no demand and refusal; that there was no injury to lands- of appellant; that damages were excessive, and that jury disregarded instructions of court, properly refused.

Before Prince, J., Spartanburg, Spring Term, 1907.

Affirmied.

Action by J. P. Dobson against Postal Telegraph Cable Company. Prom1 judgment for -plaintiff, defendant appeals.

*Messrs. George H. Peatrons, John Gary Evans*and /. *C. Jeffries,*for appellant,

cite: *Condemnation is plaintiff’s remedy:*58 S. C., 5-3S. *No action lies for trespass where entry is by permission: 62*S. C., 52. *No evidence showing fraud: 2*Allen, 212; 15 Am1. R., 379; 43 Am. R.,166; 37 Am. D., 404; 74 S- C., 557. *No evidence of zvilfulness:*69 S. C., 445. *No evidence of injury outside of right of way: 70'*S. C., 531. *Instructions zvere disregarded and new trial should be granted:*74 S. Q, 221.

*Mr. Stanyarne Wilson,*contra, cites:

*Unless entry is by consent action for trespass is proper remedy:*76 S'. C., 98; 38 S, C., 308; 62 S. €., 56; 37 S. C., 387; 71 Si C., 148, 152, 154, 571, 528. *Condemnation does not apply here:*76 *430S'. C., 98. *Misrepresentation, deception and fraud are good grounds for vindictive damages:*70' S. C., 108. *There wens proof of injury outside of right of Wfty:*70' S’. C., 588.

March 25, 1908.

The opinion of the Court was delivered by

Mr. Chief Justice Pope.

This was. an action commenced by the service oif a summons and complaint, alleging actual and vindictive damages by reason of 'entry of the defendant on lands of the plaintiff, erecting poles, thereon and stringing wires across.

The answer set up a permit 'executed by the plaintiff to enter on the land, erect poles, string wires and cut timber for a right of way.

The reply was that the permit was obtained from the plaintiff by fraud and misrepresentations.

The case came on to be heard before his Honor, Judge Geo. E.. Prince, and -a jury on July 24, 190b. The jury rendered a verdict in favor of the pfointiff for three hundred and thirty-three dollars.

Prom order refusing’ new: trial and judgment entered on the verdict of the jury, the defendant noiwl 'appeals h> this Court on eleven exceptions. They will be considered in their numerical order.

1. “It is respectfully submitted to this Court, that defendant’s first 'ground of nonsuit, which was as follows, should have 'been sustained: (1) “‘The statutory remedy of condemlnation, is. plaintiff’s proper remedy 'and he is confined to' the sarnie. The error complained of being, that the compillaint in this action alleges that the plaintiff’s right of compensation for damn ages is 'denied; the answer denying this part of the allegation. For, if defendant had injured plaintiff by reason of going through plaintiff’s land under the permit, the pleadings show that defendant was willing that plaintiff might recover compensation! by the means, of the statutory remedy of 'compensation.”

*431Tihie position of the 'appellant that plaintiff’s remedy was. the statutes of this State providing* for a 'condemnation proceeding 'can not 'be sustained1. The defendant seeking to prevent the plaintiff’s action on account of. a trespass by proving an agreement in writing whereby the defendant was permitted to locate an alleged line on plaintiff’s land1, was in itself inconsistent with 'the present position' of the defendant here. In the case of *Burnett*v. *Postal Tel. Cable Co.,*71 S. C., 146, 50 S. E, 7801, a case on all fours with the present action, this -Court held that the present form! of action was the proper proceeding. *Mason*v. *Postal Tel. Cable Co.,*71 S. C., 150, 50, S. C., 782, is also in point; so also *Phillips*v. *American Tel. & Tel. Co.,*71 S. C., 571, 51 S. E., 247. This exception is overruled.

2-. “Because His Honor erred in not granting a nonsuit on defendant’s second ground for motion of nonsuit, to wit:

(2) “ ‘Where permission is given to -enter upon the lands of -another no action lies for trespass.’ It being respecto fully submitted -that the evidence in- this case failed to show any damages that the plaintiff had- received from- the defendant by reason of the entry, especially in v-iewl of the fact that the defendant entered under a permit from the plaintiff.”

This position is unsound, as is found in the -cases herein-before recited. The plaintiff here alleged fraud and misrepresentation by- the defendant, and at least two witnesses sworn oh behalf of the plain-tiff tended to support the grounds of fraud and misrepresentation by the defendant. A reference to the authorities- just quoted aimtpWy supports this position. This exception is overruled.

3. “Because there was no evidence of demand for and refusal to compensate after the line w!as constructed. The error comlplained of being that the -defendant, having gone in under the permit from the -plaintiff, before 'any suit could be brought, ¡a demand should have been made by the plaintiff upon defendant for .compensation, and in. the absence oif proof of the same his Honor should have granted a nonsuit, *432and should have sustained defendant’s third ground of non-suit.”

We roust overrule this ground of appeal. The defendant had hastily erected its ten poles 'where only four were allowed without the knowledge of the plaintiff. A demand, therefore, by the plaintiff, bad been forestalled by the defendant before any demand could be made.

4. “Because his Honor erred in not sustaining defendant’s fourth ground of nonsuit, which was a® follows:

3 (4) “ ‘That there was no evidence tending to establish the allegation of fraud in procuring the signature of the plaintiff to the written permit; and there is no evidence to show an effort on the part of 'tíre defendant to perpetuate fraud in procuring the release.’ The error complained of being that there wias not a particle or scintilla¡ of evidence showing fraud on the part of the agent or right-of-way man of the defendant company in procuring the permit or release from the plaintiff, and not a *scintilla*of evidence to sustain the allegations of the Reply.”

It became a matter of proof; both sides made proof of their respective positions. The Circuit Judge, therefore, was justified' in refusing a nonsuit on this, ground. This, exception is overruled.

5. “Because bis Honor erred in not nonsuiting- the cause of action for vindictive damages and erred in not sustaining defendant’s fifth ground of nonsuit, which was: as follows:

(5). “ ‘Because there is not a *scintilla*of evidence of w'ilfulness, wianfonnessi or high-handed conduct on the part of the defendant toward- the plaintiff, and that this, cause should be nonsuited.’ The error being, it is respectfully submitted to this 'Court, that there was not a *scintilla*of evidence on the part of the plaintiff toi show that the defendant acted oppressively with: high-hand or in reckless or wanton disregard of the rights of the plaintiff.”

This also is a. matter upon- which the parties had! joined issue; -both introduced testimony .in- support of their con*433tentions. In *Duke*v. *Postal Tel. Cable Co.,*71 S. C., 95, 50 S. E., 675, it is held: “Under allegations and proof of a wilful tort, compensatory as wlell as punitive damages may be proved and recovered.” This exception is overruled.

6. “Because this Honor erred in not charging the defendant’s fifth request to 'charge, as follow's:

(5) *“ T*charge you that there is no testimony in this case upon which you may find a verdict for vindictive damages or smlart money.’ Th'e error being, it is respectfully submitted to this Cburt, that there was not a *scintilla*of evidence on the part of the plaintiff to show wantonness or high-handed conduct of any nature or description perpetrated by the defendant upon the plaintiff, and the defendant was entitled to this request.”

The Circuit Judge was exceedingly careful in his charge to the jury in this case to lay down the rule as to compensatory damages; testimony on both sides was submitted; a jury found a reasonable amount against the defendant. There was no error here. Let this exception be overruled.

7. “Because his Honor should 'have set 'aside the verdict and granted a new trial, on the first ground set out in the defendant’s mlotion, which was as follows:

(1) “ 'Because there was no evidence of wilfulness to> go to the jury, 'and his Honor erred in submitting this question to the jury and in not 'charging defendant’s fifth request to that effect.’ It being respectfully submitted to this Court, that bis Honor did commit error in submitting the question of wilfulness to the juiy; there being no evidence on the said point.”

We can not sustain this contention of the appellant; all the conduct of the defendant w¡as submitted to the jury, and there was some testimony against the defendant.' The Circuit Judge so1 held and we do not think he was in error. This- exception is overruled.

8. “It is respectfully submitted to this Cburt, that his Honor erred in not setting aside the verdict of the jury On *434defendant’s second- ground of a -motion for a new' trial, which was as: follows-:

(2) “ ‘His Honor erred in not granting a nonsuit on the ground's: (a) The statutory remedy of condemnation is plaintiff’s proper remedy, and he is confined to- the saimle. (bj Where permission is given to enter upon the lands of another no action lies- for trespass, (c) Because there is ne evidence of demand for and refusal- to compensate after tbe line was constructed, '(d) Because, upon the testimony, it would he impossible for the jury to say what injury was sustained by plaintiff by reason o-f anything done outside of right of way not necessarily incident to- the exercise of the right granted.’ 'And especially upon the last subsection, because it is respectfully submitted to- this Court, that, from the testimony it would' have been impossible for the jury to' say what injury was sustained by plaintiff, if any, by reason' of anything 'done outside of right of way not necessarily incident to the exercise of the said right.”

The best answer -to the appellant is that the jury rendered a verdict responsive to the issues -here presented; the Circuit Judge submitted such issues to them; he was not in error. Let this- ground of appeal be dismissed.

9. “Because his Honor -erred in not granting- a new trial and in not setting aside the verdict of the jury on defendant’s third ground of mlotion -for new trial, which) was -as follows :

(3) “ ‘The evidence -showed that the plaintiff was not and could not have been injured only in- a nominall sum, 'and the verdict of the jury is excessive and burdensome.’ It is respectfully submitted to this Court, that the testimony on the part of the plaintiff did not show1 any substantial injury to the land of the plaintiff, and the amount -of the verdict was excessive and burdensome.”

The jury by their verdict did not assess an extravagant estimate of the plaintiff’s injuries.; the testimony tended to show that the poles 'and wires injured plaintiff’s land; three witnesses, though it amounted' to three hundred dollars. *435It is sometimes well that the right of a jury to return damages against the defendant should be guarded by the 'Circuit Juidge. Of course, when he thinks that the verdict is excessive be should reduce it by granting a new trial or a new trial *nisi.*Let this exception be overruled.

10. “Because his Honor erred in not setting aside the veddict of the jury and granting a new trial on defendant’s fourth ground for motion for new1 trial, 'which was as follows:

(4) “ ‘The jury disregarded the instructions of the Court and the evidence inasmuch as the evidence plainly showed that the plaintiff, if injured at all, wias injured only in a nominal sum.’ The error being that in the face of this testimony and of the charge of his Honor the verdict was excessive and burdensome and should have been set aside and a new trial granted.”

This ground of 'appeal is not sound in this case; it was thoroughly examined by the Circuit Judge and he did not interfere with the verdict and we will not. This exception is overruled.

11. “Because his Honor erred in not reducing the verdict on the ground for new trial *nisi*as set out in defendant’s fifth ground of motion for new trial, which' was as follows:

(5) “ ‘Faffing in this, we will' ask a new trial *nisi*on the ground that the jury disregarded'the 'evidence, inasmuch as none of the witnesses for plaintiff testified that there were more than four poles: oo plaintiff’s land than there would have been if defendant had located its line according to1 plaintiff’s contention-. 'Some witnesses testified three poles and some two, and under the evidence it would not have gone over more than one or two acres of plaintiff’s land than if it had been located according to plaintiff’s contention, 'and surely the entire valuation of the two acres would not have been destroyed by two or three extra poles being placed thereon.’ It being respectfully submitted that his Honor erred in the face of such' testimony and such proof which showed that the plaintiff was not injured, and his Honor *436should have reduced the verdict or granted- a new trial *nisi.”*

We conclude that this last ground of appeal has been already considered, and therefore overrule the same.

The judgment of the Circuit 'Court is> affirmed.

Messrs. Justices Jones and Woods *concur in the result.*