Hammond v. Port Royal & Augusta Railway

Citations

• 16 S.C. 567
• 1882 S.C. LEXIS 31

Syllabus

<p>1. Plaintiff conveyed in fee-simple to a railroad company for its road-bed a strip of land through his plantation, by a deed-poll, which contained the express condition, subsequent, “ that the system of drainage shall remain the same as now, and ditches to remain of such a depth as to allow, as heretofore, the drainage of the land to the depth of five feet.” This condition was violated by the grantees, and afterwards the railroad was purchased by a new company. Held, that the terms of the deed did not create a covenant running with the land, and there being no personal covenant by the present owners they were not liable to plaintiff in damages for their mere failure to remove obstructions which had been placed in the ditches by the former company.</p> <p>2. To render the defendants liable it must be shown that the plaintiff’s system of drainage had been affected by obstructions caused by defendants, or by them increased.</p> <p>3. Plaintiff is not confined to an action to enforce a forfeiture under his deed for condition broken, as the corporations, independently of covenant, are liable for damages done by them to plaintiff’s system of drainage; but the defendants’ duty was passive — their only obligation was not to obstruct the drainage and to permit plaintiff to keep it up — and, therefore, the Circuit judge erred in charging the jury that the defendants were liable for damages, resulting from their failure to remove the obstructions caused by the acts of the former owners, and to restore the system of drainage as it existed when the deed was executed.</p>