« ForrigeFortsett »
of said causes of action that the said keeping Jones, J., delivered the opinion of the court: up, maintaining, and continuing of the said This is an appeal from an order sustaining a dam has heretofore been and now is without demurrer to the complaint herein on the the consent of the plaintiff; that the said ground that it did not state facts sufficient to plaintiff has received no compensation for the constitute a cause of action. The action was injury received by him as heretofore set forth; begun August 17, 1894, to recover damages or and by reason of the premises the plaintiff is compensation for injuries to the lands of plainentitled to have, of and from the said defend tiff, situated in Lexington county, caused by a ant, compensation," etc. That said allegation dam erected in 1889 across Broad river by the is insufficient because it does not aver that the board of trustees of the Columbia Canal under dam was erected without the consent of the authority of an act approved December 24, plaintiff, nor that entry and use were made of 1887. The complaint (which will be set out in the private property without the permission of full, at least as to one of the causes of action, the plaintiff. Further, it fails to allege that in the report of this case) sets up two causes of tbe taking complained of was after notifica action,-one referring to injuries to an island tion in writing by plaintiff to defendant of in Broad river known as Mickler's Island;" plaintiff's refusal of consent thereto, or that the other to injuries to a tract of 420 acres lying said taking and use complained of were and on the western bank of the river, on which were are without the permission of the plaintiff. I a branch and a ditch leading to the river, by The complaint therefore does not show that which, together with the river, this tract had the plaintiff did not have bis remedy under been accustomed to be drained for agricultural $ 1752 of the Revised Statutes of 1893. The purposes. At the hearing the court properly statute incorporating the board of trustees, took judicial potice of the act approved Deauthorizing the erection of the dam, having cember 24, 1887, entitled “An Act to Incorpo. then provided a remedy for the taking and rate the Board of Trustees of the Columbia use of plaintiff's property, be is confined to Caval, to Transfer to the Said Board the Co. such remedy; and, the complaint not showing lumbia Capal and the Lands now Held thereupon its face that the case there alleged is with and Its Appurtenances, and to Develop one not provided for by said statute, it fails the Same," and of the amendatory act apto state a cause of action. It is further sub-proved December 24, 1890. The court also mitted by the defendant that the complaint, took judicial notice of the fact that Broad upon its face, shows no actionable injury to river is declared to be a pavigable stream and the plaintiff between the time of the com a public highway. To this the plaintiff did mencement of the action and of the refusal not object, and, as appellant, does not object of the defendant to remove the dam. Tbe re-bere. These acts and this fact, then, must be fusal of the defendant to remove the dam was read into the complaint, as a part thereof. It dated the 14th of August, 1894. The action was appears that under authority of the said act of commenced the 17th of August, 1894. During 1887 the board of trustees of the Columbia this interval it is not alleged that any damage Canal completed said dam in 1889, and by occurred to the plaintiff by reason of the flow. authority of the amendatory act of 1890 the ing of his land by prolonged freshets in the trustees on the 11th of January, 1892, conveyed river, or any injury thereto, as in law the de. the canal and dam, and the property appurtefendant, assuming that, if liable at all, it could nant, to the defendant company, and the deonly be liable for such injury as arose from the fendant bas ever since maintained and contintime of its refusal to remove, and, the com- ued said dam. The complaint further alleges, plaint showing on its face no actionable injury substantially, that by reason of the maintefrom said time of refusal to remove to the dance of the dam the water of Broad river at commencement of the action, it does not state plaintiff's land is raised 6 feet in the channel, facts sufficient to constitute a cause of action. ihereby obstructing the free and accustomed
The order sustaining the demurrer was as flow of water, and of sand and other sterile follows:
earth, through the channel of the river and of "The defendant interposes an oral demurrer the branch and ditch, and preventivg the to the complaint upon the ground that it does proper and usual drainage of these lands; not state facts sufficient to state a cause of thereby causing the waters to percolate action, and moves to dismiss the said complaint through and water. log and soak, these lands; upon the ground that the same does not state that in times of ordinary freshet the waters of a cause of action, as set forth in the written the river are caused to frequently overflow and grounds filed in the cause pursuant to rule 18 inundate large portions of said land to such of the circuit court. Now, upon hearing ar- extent as to destroy the crops growing thereon, gument of counsel for plaintiff and defendant, and wholly prevent the use of said lands for it is ordered and adjudged that the said oral agricultural purposes; that the keeping up, demurrer be sustained, and the said complaint maintaining, and continuing of the said dam is bereby dismissed. The court reserves the by the defendant bave been and now are withright hereafter to file its grounds and reasons out the consent of the plaintiff; and that the for sustaining the demurrer and dismissing the plaintiff has received po compensation for said complaint, if it may see fit.
injuries. The complaint also shows that on "O. W. Buchanan, Presiding Judge. the 2d day of August, 1894, the plaintiff gave “December 11, 1895."
defendant notice of said nuisance, and re
quested defendant to remove the same, but that Messrs. Melton & Melton, J. S. Muller, defendant has failed and refused so to do. and Obear & Douglass for appellant. The date of defendant's refusal does not appear.
r* Abney & Thomas for respondent. In the order sustaining the demurrer the presiding judge, Hon. 0. W. Buchanan, reserved | injury sustained by plaintiff for which action the right to file his grounds and reasons for sus would lie is small, but that was for the jury. taining the demurrer and dismissing the com- We do not think the demurrer could be susplaint, if he saw fit. These grounds and rea tained on this ground. sons have not been filed, but it appears in the 2. Taking the first proposition stated above: case that “the demurrer was sustained for the This is the crucial question in the case. Does several grounds set forth therein.” The demur- the act of 1887 provide a remedy for the in. rer specifying the grounds and the order sustain- juries complained of by plaintiff? Section 2 of ing ihe same will appear in the report of the ihis act provides that the said board of trustees case. The demurrer, and the exceptions to are hereby authorized and directed for the dethe order sustaining the same, raise practically velopment of said canal to take into their posthe following questions: (1) Whether the statute session the said property with all its appurteof 1887 gave authority for the acts resulting in nances; and for the purpose of navigation, for the injuries complained of, and afforded there. providing an adequate water power for the use for a remedy which is exclusive. (2) Whether, of the penitentiary and for other purposes assuming the affirmative of the first proposi. hereinafter pamed, they are hereby authorized, tion, the complaint contains any statement of empowered, and directed to improve and defacts showing a case outside of the application velop the same." Section 3 provides that in of such a provision of law, such as acts of order to improve and develop the power of said negligepce in the construction or maintenance canal for navigation to furnish the city of Coof the dam, or acts in excess of the authority lumbia with an adequate supply of water and conferred. (3) Distinct from the foregoing, other hydraulic purposes, they are authorized and assuming the right to bring an action at to construct a dam across Broad river at, above, common law, whether the complaint is fatally | or below the head of the present canal, as by defective in pot stating that plaintiff had been survey already made, may be deemed advisable injured by defendant after notice of the alleged for the development of the said water power, puisance, and demand for its removal. We and in locating and constructing the said dam, will consider the last proposition first.
they shall bave the right to raise the water in 1. It appears that the dam was constructed, the Broad river to such a beigbt as will give a and the water raised in the channel of the river, head and fall of 37 feet at the south side of by the grantors of the defendant. The de Gervais street at mean low water," etc. Section fendant was not the original creator of the al- 4 provides that the said board of trustees shall leged nuisance. “Where a defendant was not have the right of way, and the same is hereby the original creator of the disturbance of an granted in and along said course of the canal, easement, an action will not lie against him for the construction and operation of the same. until he has been requested to remove the If in enlarging and developing the said canal, cause of the disturbance wbich is on his land." or in constructing the said dam, it become necesElliott v. Rhett, 5 Rich. L. 420, 57 Am. Dec.sary to use the private property of any person 750. In Angell on Watercourses, $ 403, the same or corporation for the purpose, the said board doctrine is announced as follows: "It has of trustees, for the sake of the public improve. been held ever since Penruddock's Case, 5 Coke, ment contemplated in the construction of the *101, that where a party was not the original said canal, and the better navigation of the creator of the nuisance he must have notice of Broad river and Congaree river, and the transit, and a request must be made to remove it, portation of supplies to market, shall have the before any action can be brought. Where a right to acquire such right of way in the dam was erected, and land in consequence manner now provided by law.” Appellants flowed, by the grantor of an individual, the contend for a strict construction of this act, and grantee will not be liable for the damages in that, while the power of eminent domain has continuing the dam and flowing the land as been conferred, the manner prescribed for the before, except on proof of notice of damage exercise of it has been carefully and expressly and of a special request to remove the limited to the securing the right of way, prop. puisance.” This rule is based on the reason erly so called, along the line of the canal, and that it would be unjust to subject a person, not for the purpose of the construction of the dam. the creator of the nuisance, to a suit for the It is undoubtedly true, as a general rule, that nuisance of which he was igporant, and which statutes granting power to condemn private he did not intend to continue. In this case property for public use should be strictly connotice of the nuisance, and request for its strued. This principle was very strongly asremoval, were received by the defendant fifteen serted in Greenville & C. R. Co. v. Nunnadays before the commencement of this action. maker, 4 Rich. L. 111, but this case asserts also The alleged grievances were caused by the another well-settled rule of construction, in this "keeping up, maintaining, and continuing the language (p. 115): “But in the construction of dam."
The natural and accustomed flow of the charter, when the strict signification of a the water, etc., through the channel of the word is opposed to the apparent intention, it is river, of the branch, and of the ditch “bas been proper to maintain the design and purpose of and now is bindered and obstructed.” The the charter, even by neglect of the meaning of river, branch, and ditch “bave been and now the word.” Mr. Endlich, in bis work on Inare prevented and hindered from effecting the terpretation of Statutes ($ 343), shows that, proper, natural, and usual drainage of said while the rule of strict construction applies to land:
the said waters are caused to perco- such statutes, the application of such rule must late,” etc. It is clear that the complaint alleges stop short of defeating the object of the enactinjury after as well as before the notice to ment. Mr. Black, in bis work on the same remove the nuisance, and up to the com- subject (p. 303), says that such statutes “are to mencement of the action. It may be that the receive a reasonably strict and guarded inter
pretation, and the power granted will extend no inference, if not in express words, when it aufurther than expressly stated, or than is neces- thorized the raising of the water in Broad river sary to accomplish the general scope and pur. 10 a given heigbt authorized the entry and inposes of the grant." So in Ross v. Georgia, C. vasion of the plaintiff's land to the extent neces& N. R. Co. 33 S. C. 482, Chief Justice McIver, sary to maintain such beight of water. Now, speaking for the court, said: “When the legis in the 4th section of the act the board of lature granted a charter to the defendant trustees is granted necessary right of way in company, authorizing it to construct a rail. and along the course of the canal for the way between the points therein desigpated, construction and development of the same. it must be regarded as having conferred upon Under the well-settled rule of statutory consaid company the right to take and condemn struction, that when the subject matter of an such lands and rights of way as might be neces. act is clearly ascertained, in order to effect the sary to effect the purpose. This is the rule legislative intent, and carry out the general of construction as applied to such enterprises scope and purpose of the act, general words as railroads built for private gain, but serving will be restrained, and words of narrow sig. a useful public purpose. The construction of nification will be enlarged, a court would be the Columbia Canal was a great public work, justified in enlarging the words above quoted begup by the state itself, for important public to include, not only lands strictly in and along purposes; among others, "for providing an the course of the canal, but all lands necessary adequate water power for the use of the peni- to be used in maintaining the dam and the spectentiary;" "to improve and develop, the power ified height of water which are essential for of said canal for navigation;" "furnishing the the development and operation of the canal. city of Columbia with an adequate supply of But $ 4 goes further, and provides: “If in. water.” The state created the board of trus- enlarging and developing the said canal, or in tees, giving it large discretionary powers, and constructing the said dam, it becomes necessary directed it to improve and develop the said to use private property." etc., “the said board canal for the purposes named. "The principle of trustees,” etc., 'shall have the right to acof strict construction is less applicable where quire such right of way in the manner now the powers are conferred on public bodies for provided by law.” It will be observed that in essentially public purposes. Endlich, Inter- ($3 the right to raise the water in the river was. pretation of Statutes, $ 355. "The right to complied with, and made a part of the concondemn will be
more readily instruction of the dam; and now, in $ 4, the ferred
in favor of public corpora- right to use private property necessary in the tions exercising powers solely for the public construction of the dam is expressly given. use and benefit than in favor of private indi. Construing the terms used in the light of the viduals, or corporations organized for pecuniary manifest purpose of the act, we cannot give profit." Lewis, Em. Dom. S 241. Article 1, them the narrow and restricted interpretation: $ 23, of the Constitution of 1868, under which contended for by appellant, limiting the right the case arises, provides: “Private property of way to the actual line of the canal, and to shall not be taken or applied for public use, or the land actually occupied by the structure for the use of corporations, or for private use, called the “dam,” but must give them the enwithout the consent of the owner or a just com- larged meaning indicated above. The real dam pensation being made therefor; provided, how is the damming of the water to the specified ever, that laws may be made securing to per- height, and must include all lands or easesons or corporators the right of way over the ments necessary to maintain it. The legislalands of either persons or corporations, and, ture, having directed the development of a for works of internal improvement, the right great public work for essentially public pur. to establish depots, stations, turnouts,” etc.; poses, certainly meant to grant all rights with"but a just compensation shall, in all cases, out which the power granted would be worthbe first made to the owner.” This provision less. of the Constitution "was inserted for the double It is contended further that, granting that purpose of maintaining the sanctity of private the statute of 1887 vests the board of trustees property, and at the same time promoting in- with all the powers conferred by the conternal improvements, especially in respect to demnation statutes of this state (Gen. Stat. rights of way over lands, and in establishing 1882, SS 1550—1561; Rev. Stat. 1893, SS 1743– stations, etc., to facilitate transportation.” Ex 1755), still the defendant could reap po benefit parte Bacot, 36 S. C. 133, 16 L. R. A. 586. thereby without showing that the provisions
The statute in question must be interpreted of the statute have been called into actual in the light of the foregoing principles. It is operation in the manner provided. Section expressly provided in the 3d section of said act 1743 provides: "Whenever any person or corthat in locating and constructing the said dam poration shall be authorized by charter to conthe board of trustees shall bave the right to struct · a canal
in tbis state raise the water in Broad river to a specified such person or corporation, before entering height at a given point. This was deemed es upon any lands for the purpose of construction, sential to the development of the canal, which shall give to the owner thereof .. notice the trustees were directed to do. The right to in writing that the right of way over said lands locate and construct the dam necessarily, and is required,” etc. It does not appear on the by the terms of the act, includes the right to face of the complaint that any such notice was raise the water in the channel of Broad river. given. But in Verdier v. Port Royal R. Co. 15 Assuming that plaintiff, as a proprietor on S. C. 476, it is held that an owner may give Broad river, a fresh-water navigable stream, permission to enter for purpose of construction owned to the middle of the stream, as con- of a highway without first receiving the notice. tended for by appellant, this act, by necessary and that such may be inferred from facts and circumstances. See also, to the same effect, the land and bave the compensation to which Tutt v. Port Royal & A. R. Co. 28 S. C. 400, the landowner is entitled ascertained, proceeds which was an appeal from an order sustaining to construct its road over the land of another, a demurrer. The complaint does not show without objection, or by the implied permisthat the plaintiff objected at all to the raising sion, of the landowner, such landowner may of the water in the river 6 feet on plaintiff's at any time within one year after the complebanks. This was done in 1889 by defendant's tion of the road, under the provision of $ 1558 grantor, without objection, so far as appears. , (Rev. Stat. 1893, $ 1752), demand compensaThe allegation of the sixth paragraph of the tion in the manner therein provided." complaint, that the said keeping up, main- It is contended that the right to condemn taiping, and continuing of the said dam by the lands does not include such use of or injury to defendant has heretofore been and now is with the lands of plaintiff as complained of in this out the consent of the plaintiff,” etc., relates case; but in Ross v. Georgia, C. & N. R. Co. to time beginning January 11, 1892, when the 33 s. C. 477, it was held that the word "lands” dam, etc., was conveyed to defendant. The includes all rights or easements growing there. first and only evidence of objection was given out. The compensation allowed by the statute on the 2d day of August, 1894, when the notice is for the right of way, not simply the land. to remove the nuisance was served. The act “The act, in effect, defines the term 'compenauthorizing the construction of the dam and sation' to be the value of the land, together raising the water in the river's channel was a with such special damage as may be sustained public act, of which plaintiff is presumed to by the landowner, by reason of the construchave known. The extensive and permanent tion of the road through his lands.” Bowen v. character of so large a public work, so near Atlantic & F. B. V. R. Co. 17 S. C. 579. plaintiff's land, with the manifest and avowed Since the compensation is for the right of way, purpose of raising the water on plaintiff's land, the right of way must include such use of land with the inevitable result of interfering with as subjects the landowner to any special damthe drainage of lands accustomed to be drained age for which compensation is allowed. There into the river in the territory necessary to main is no doubt that the injuries complained of in tain the specified head of water in the river, this case could have been submitted to a jury the immediate elevation of the water in the to assess the amount of compensation, as mat. branch and ditch spoken of, and the overflow ter of special damages. Of course, the permisof plaintiff's land in times of ordinary freshet, sion granted by plaintiff to the board of trusmust surely have attracted plaintiff's attention. tees to enter for construction of the dam and The entry upon and appropriation of plaintiff's appurtenances did not deprive plaintiff of his land for the construction of the dam were open constitutional right of compensation, for which and patent. The projection and maintenance a remedy was provided. It simply relieved of the water of the river 6 feet against bis the board of trustees, so entering, from the banks, above the former level, with its inev. character of trespassers. Tompkins v. Augusta itable results, were all the entry and use of & K. R. Co. 21 S. C. 431. Neither is the deplaintiff's land necessary to be made and were fendant grantee a trespasser for continuing as effective for the construction of tbe dam and the use. The remedy provided by the statute canal as an entry by workmen with pick and is exclusive. McLaughlin v. Charlotte & 8. C. shovel to dig up the soil would be in the case R. Co. 5 Rich. L. 584; Fuller v. Edings, 11 of constructing a railroad. From the absence Rich. L. 239; Verdier v. Port Royal R. Co. 15 of objection, under these circumstances, per- S. C. 483; Sams v. Port Royal & A. R. Co. Id. mission to enter must be inferred. Section 487; Ross v. Georgia, C. & N. R. Co. 33 S. C. 1752, Rev. Stat. 1893, provides for such a case: 477. "If in any case the owner of any land shall 2. Notwithstanding the legislature autborpermit the person or corporation acquiring the ized the erection of the dam and the raising right of way over the same to enter upon the of the water in the river, and provided an exconstruction of a highway without previous clusive remedy to enable plaintiff to secure compensation the owner shall bave the right, compensation for the lands taken, and special after the highway shall have been constructed, damages, nevertheless an action at common to demand compensation, and to petition for an law would be sustained for any injury resultassessment of the same in the manner herein- ing from negligence in the performance of before directed: provided such petition shall authorized acts, as compensation for injury be filed within twelve months after the bigb- from such a cause was not contemplated by the way sball bave been completed through his or legislature. The complaint, however, contains her lands” Tbis section has received inter- no allegations to bring the case within this pretation in tbe case of Aull v. Columbia, N. & rule. Wallace v. Columbia & G. R. Co. 34 S. L. R. Co. 42 S. C. 436, where Chief Justice C. 66, is in point here: *There must be some McIver, as the court's organ, says: “In allegations of facts showing that the defendant $ 1558, Gen. Stat. (Rev. Stat. 1893, $ 1752), the in doing the act wbich it was authorized to word used is 'permit,' showing an intention to do, bas either waptonly or through negligence provide for cases, which oftentimes have oc- done the act in such a manner as unnecessarily curred, where the railway company, without impaired or injured the rights of the plaintiff
. first obtaining the 'consent of the landowner,
The wrong, if any, which was done either expressly or by presumption, bas been to the plaintiff by the defendant did not consuffered or permitted to construct its road 'over sist in constructing its road bed over the streams the laod of apotber.'
If, tberefore, a flowing througb the lands of the plaintiff, for railway company, without first obtaining the that it had a legal right to do. Nor did it conconsent of a landowner, and without first resist necessarily in the fact that the natural flow sorting to the proper proceedings to condemn of the water was obstructed, for that may have
been the inevitable and unavoidable conse | tiff granted to the board of trustees, under whom quence of the construction of the railroad, but defendant claims, the right to overflow and it may have consisted in the upskillful or neg: cover with water, and keep covered with water, ligent manner in wbich the work was done." 143 acres of land, being part and parcel of the Authorities on this subject are numerous. The same tract alleged now to be damaged by reapoint is tersely stated in Watts v. Norfolk & son of the keeping up and maintaining of the W. R. Co. 39 W. Va. 196, 23 L. R. A. 674: dam alleged in the complaint to be a puisance. “The grant is a defense as to all acts done In law, this grant of the easement to overflow within it, not outside it.” Neither a right of this portion of the particular tract of land has way conferred by grant, nor one conferred by the same effect as if condemnation proceedings condemnation, will give exemption from dam- bad been taken under the provisions of law, ages consequential upon the improper or neg- and all injuries to the residue of the tract ligent exercise of the rights, and not from the of land are conclusively presumed to have fair, proper, and reasonable exercise of it; for been taken into consideration in fixing the the reason that peither in making such grant, amount of the purchase money of the parnor in the assessment upon an inquisition, are cel of land so granted.” The demurrer was damages contemplated or included that are to sustained on this ground, as well as upon the be solely attributed to such misuse of the right. Other grounds stated in said Leitzsey's Case, and
The demurrer was properly sustained upon appellant's third exception in this case alleges the grounds discussed in the second and third error. The circuit court did not err. In Lewis, propositions above stated.
Em. Dom. $ 566, it is stated: “If one indiThe judgment of the Circuit Court sustaining vidual should convey to another a strip of land the demurrer and dismissing the complaint is to be used for a railroad, there would be a re affirmed.
lease of all damages resulting from the operation of the road in a reasonable and proper manner.”
This is precisely what this court decided in Arthur S. NUNAMAKER, Appt., Wallace v. Columbia & G. R. Co. 34 S. C. 62.
In the last-mentioned case the railroad comCOLUMBIA WATER POWER COMPANY. pany acquired a right of way by agreement
with the landowner, and it was held that the (........S. C.........)
landowner could not maintain an action against
the company for damages resulting to the landThe grant of a right to flood a part of a owner from the construction and maintenance
farm by the erection of a dam will preclude the of its roadbed, without showing that the dammaintenance of an action for injuries caused by age was the result of the unskillful and negli. the dam to the remaining portion.
gent manner in which the work was done. (October 17, 1896.)
Randolph, Em. Dom. $ 129, says: “ There is
a well-settled rule to the effect that where propA
the Common Pleas Circuit Court for Rich- condemned, the consideration is conclusively land County in favor of defendant in an action presumed to cover all damages to the remainder brought to recover damages for alleged wrong. obtained compensation in condemnation pro
of the tract for which the owner could have ful flooding of plaintiff's land. Affirmed. The facts are stated in the opinion.
ceedings.” In Chicago, R. I. & P. R. Co. v. Messrs. Melton & Melton, J.S. Muller, Smith, 111 III. 363, it is held that, where a perand Obear & Douglass for appellant.
son conveys a right of way over his land, it Messrs. Abney & Thomas for respondent. will be conclusively “presumed that all the
damages to the balance of the land, past, presJones, J., delivered the opinion of the ent, and future, were included in the considcourt:
eration paid him for his conveyance, the same This case, being in all respects, except in as an assessment of damages on a condemvaone particular to be hereinafter noticed, like tion would be presumed to embrace." To the the case of Leitzsey v. Columbia Water Power ! same effect is ihe well-considered case of Watts Co. (just decided by this court) ante, 215, is 1 v. Norfolk & W. R. Co. 39 W. Va. 196.23 L. R. ruled by the principles therein announced. A. 674,
which bolds that, when one grants to a The point of difference in this case and the one railroad company a strip of land for its use in just referred to is this: In the third paragraph the construction of its road, all damages to the of the complaint it is alleged that "on or about residue of the tract, arising from construction, the 13th day of March, 1891, the said board of which can be taken into consideration in the as trustees of the Columbia Canal purchased sessmento compensation under proceedings for from the plaintiff herein the right to overflow condemnation, are released. There are many and cover with water, and keep covered with other cases to this effect. It would be unreawater, 144 acres, part and parcel of the tract sonable to hold that a voluntary grant of a of land described in the second paragraph, right of way is not as effectual to protect the and bordering on the said river.” These acres, grantee from suit for damages arising from its however, are not included in the 60 acres, for proper use as a right of way taken under cominjuries to which damages are demanded.' To pulsory proceedings. This, which is settled this defendant demurred as follows: The law as to railroads, applies, on principle, to complaint, upon its face, shows no cause of canals as well. We have shown in Leitzsey's action, in that it appears therein tbat the plain-Case that this land, including its use for the
purpose for which it was granted, may have NOTE.-See the preceding case of Leitzsey v. Co- been condemned for the necessary use of the lumbia Water Power Co. (S. C.) ante, 215.
canal. The plaintiff, having seen fit to grant