Historical Newspapers of South Carolina

Below is the OCR text representation for this newspapers page. It is also available as plain text as well as XML.

Ii MHMTAIIT DECISION. ftKnrr of way for lumber road non-transferable. Prince File* Opinion In I ho of Hit er vs. Seymour That Will far Kcert?ng Effect on Tim (untmu. Judge Prince a few days ago filed ? decision In the cm* of John H. Lumber Company va. B. B. Sey ar end Ada A. Seymour, which arsseed before him at the October of court, l?07 The plaintiff was feted by aa D. Jennings, Esq., Sand the defendants by Daria D. and WL D. Motee. Boqm decision Is of much Importance Interest to all who are engaged ha lumber business or In the sell? er baying of lumber and timber Aa as it decides a point not htth?r %? rarfcxl tn the courU of this state In a eait involving rights of way for lum? bar roads. declslot. reada In part aa fol an action Instituted by a is In tiff, a corporation, agalnat de? lta, for Injunction to restrain its from Interfering with the of a tramway across a cer tract of land owned by defend - and known aa the "Seymour Home Plaintiff founds Its right to ict said tramway across de it'a land under a contract or set ap In the complaint between fJka defeadants and D. W. Alderman e*sa* Com puny, and the assignment of aftJd contract by D. Vi. Alderman A) sfcsaa Company to Harper eV Baker, y sn?d by Harper A- Baker to plaintiff. At the thne of filing the complaint. applied to and obtained from Partly an Injunction restrain ?wsfeadants from farther Interfer with plaintiffs tramway. Thia of course, a temporary Injunc aad Intended so to bs. Tl ereaf defsndant* having aaewered the lot moved before Judge Klugh ?rre this Injunction, but Judge required plaintiff to give the bond and continued the lnjunc He than referred It to the mas tar as take the testimony and report ejsj m? ihm kernen of law and fact. In Far defendants deny the of the plaintiff to build and ope the said tramway under the con and assignments sot out In the % and set op a counter claim for the unlawful entry on their land, comes before me on the off the master and exceptions by both plaintiff and defend In bis report the master re? that the complaint be dla tke temporary Injunction dia aad defendants allowed Judg for throe hundred dollars. <F^fl4ew** , mm* After reviewing the case and citing Itiee Judge Prince concludes his as follows: I do not think I can bo mistaken la holding that the Rights of Way intends 1 to be and are merely tenant to the grant of ths grow ?plns timber, for It Is to be noted I the grant of ths easement Is In tae same clauae. and It 11 coupled with the great of the timber, follow fast tsruaedtaeely after a deacrlptlon of ojaa land on which the growing timber la granted and In these words: "To? nt with saculau j right of ways tram-roads or -ail roe da, cart or roads; on, over, across and through the said lande for a tsrm of Son years from the date hereof." etc. I It should also bo noted that by the provision* of this contract, grantee area to cot and remove Umber within ten years, but If for any cause It should have failed to remove the tlm m*r la the rime limited. It should have aWo years more for that purpose by snaking certain annual compenaatlon so grantors An extension of tlm. tor use of right of way Is provide i ?or upon payment of |io per year to1 grantors for auch privilege. Now t<? me It la abaolutely unthink? able that grsnt >rn ahould have Intend? ed to convey to granteea auch various varied rights of way for any pur other than what wan neces<ury the removal by the purchaser, It* Manors and assigns, of the timber purchased. I cannot agree with the contention that purchaser under tnts I contract acquired such rtghta of way for the purpose of rnabltng It t" transport serosa this land timbers pur? chased from other psrtles, and on other land. if, however. the parties to sal ! contract Intended those rights of way to be us??d for the double purpo?. ?! removing not only the timber granted from the lends of grantors.'but stash ether lands purchased or to be pur? chased from other partlee. then auch righto of way would have a double na tare. that la to say; they would t>e feoth easements appurtennnt rind eaa* snents In gross. Kasements appur ten int. when u*ed for the removal af the timber granted, and casement* In gross, when used for removal or transportation of timber from other purchased from other parties. Insofar as such rights of way are easements In gross, they ure non-as? signable, hence plaintiff could n<n acquire such easements in gross from D. W Alderman A Sons Co. or Us as? signs by assignment. I hoM that Insofar as plaintiff has constructed and used the trumroad In question, on and over the iands of defendants for * purposes other than the removal of pine timber from aald 1 landa, It haa . trespassed upon said lands and la liable to the defendants In damages. The master reports that at the time of the construction of plaintiffs tram road there waa not upon defendant's landa any of the timber purchased by D. W. Alderman A Sona Company. That It had all been prevloualy cut^ and hauled off. Aa to this, I think the maater slightly erred. While it does appear from the testimony that al? most all of the pine timber on this land had been removed before build? ing thla tramroad, yet It doea also ap? pear therefrom that at that time there was a small quantity of scattering timber etlll standing which haa alnce been cut and removed by this trum? road. >' That auch scattering timber waa on the weatern aide or half of this tract of land, and south of the branch and It was more convenient to handle said scattering timber on this tramroad than It was to cart or transport It to the tramroad on the eastern aide of thla tract of land, constructed and used for the purpose of vetting out the timber from the northeastern cor? ner of the said tract of land where the much larger part of aald timber had been situate. The evidence doea not, however, ahow that It waa more convenient or leas expensive to build this new tram road In order to get out this standing scattering timber than It would hav been to have carted or hauled It to the old tramroad on the eastern side. Nor does It show that the purpose In building this new tram road was to enable plaintiff to get out this scat? tering timber. On the contrary I ven? ture to think that a careful reading of all the testimony will convince any candid mind that the plaintiff's chief, If not Its only purpose. In constructing said tramway waa to enable It to reach and get out Umber from other lands. f The master practically so finds, and In such finding I concur and I find that except the trasportation of the small quantity of scattered timber oft defendant's lands, plaintiff haa used aald tramway alnce Ita construction for purposes other than removal of timber from defendant's land. That such use waa without right under the defendant's contract with D. W. Al? derman A Sona Company, and waa unlawful. True, plaintiff has done this, aa the master finds, under the con? scientious belief that it was acting strictly within Its rights under the contract, there has been no exception to such finding, and it . must stand, and auch finding relieves this case of all claim against plaintiff by defend? ant for punitive damage, but such flndlna practically does not relieve jtho plaintiff from liability for actual dam? ages, nor doea It Justify the court lit equity In atretchlng forth Ita strong arm to prevent defendants' Interfer? ence with such unlawful use of their i.'iios. He who comes Into the court of equity seeking Its aid, If he world succeed, must come with clean hands; and It goes without saying that If plaintiff's purpose In constructing the tramroad was solely, chiefly, or even parUy to use It for purposes other than the removal of pine timber from defendant's lands, and If It has bii.ee used It for such other and unlawful purpose, It cannot now have the old of the court of equity In restraining defendants from Interfering with such unlawful use. I Even If aald tramway were built with a lawful pourpose of removing the pine timber from the defendant's landa. and plaintiff has since been us? ing It for the unlawful purpose of hauling timber from other lands, plaintiff cannot have the aid of the court of equity in preventing defend? ants from Interfering with auch un? lawful use. To get the assistance of the court of equity In such case, the plaintiff must satisfy the court that It Is with? out fault or blame und has been guilty of no wrong to defendant* in the premises. As hereinbefore shown, plaintiff has not been without fault in the premises. I gpaiahtds, then-fore, that the court must refuse to grant Its prayer for Injunction. The master found that the defend? ants \\> re entitled to r cover of plain? tiffs on Its counter claim for damages the sum of three h jndred dollars; plaintiff except* to this finding, and Insists that such find ng Is not sup? ported by 'the evidence, and claims further that there Is no evidence showing In dollars and cents the value i f the damage dorn- dt fen lant's lands by the building of the said tram road. It Is true. I find from the testimony, that no witness has testified to the value of such damages as were sus? tained by defendants In the construe- , tlon of thla tramway. The defendant, B. B. Seymour, test? ifies to the cutting of certain pine and oak trees, by the plaintiff on the line of its tramroad, but the cutting of such trees is not alleged in the coun? ter claim ns an element . defendant's fllUlftf. and such damages cannot be considered. But If It were proper to consider the cutting of these trees in the ele? ment of damages under the counter claim, there is absolutely no testimony upon whfch the master could Intel? ligently find the value of such trees as were cut or the extent to which the value of the land was depreciated by the cutting of said trees. The witness, B. B. Seymour, says these were large trees; how large, he does not say. If the pines were large enough to be cut Into plank or cross ties, these belonged to the plaintiff. The element of actual damages set up In the counter claim Is digging up the soil. To what extent the soil was digged up In the construction of the tramway does not appear from the evidence. The chief damage or injury proven by the evidence Is due to the use and operation of aald tramway since its construction. This is not the dam? age sought to be recovered by the counter claim and it cannot be recov? ered in this case. Since the defend? ants have failed t- prove the value of the damages alleged in their counter claim, the master was In error in al? lowing them anything more than nominal damages, to wit; one dollar. It should be remembered that defend? ants have not by their counter claim sought to recover damages for <any injury to defendant's land accruing since the construction of aforesaid tramroad. It la therefore ordered adjudged and decreed as follows: 1. The defendant's exceptions to the master's report be and the same la hereby overruled. 2. That so many of plaintiff's ex? ceptions to the said report as are not herein practically sustained be over? ruled. S. That the master's report, and the same is hereby modified to con? form to the views herein expressed, and thus modified, be confirmed. 4. The defendants have leave to enter judgment against the plaintiff I for one dollar, nominal damages on counter claim. 5. That the temporary Injunction aa before granted herein be, and the same Is hereby dissolved. 6. That plaintiff'.* prayer for an Injunction against defendants re? straining them from Interfering with the tramroad In question Is refused. 7. That the plaintiff pay the coats of this action. (Signed) Oeo. E. Prince, Presiding Judge, Sept 11, 1908. A BOOZY HAHOOON, Elg Monkey a Hard Drinker and a Hod Fighter. Washington, Sept. 25.?Attacked and seriously bitten by a big baboon called "Johnnie/ whose natural vlc lousness has been Increased by the acquired habits of drinking beer and whiskey. Miller Medley, colored, is a patient at Emergency Hospital. Blood poisoning Is feared. The Hu? mane Society will take cognizance of the report that the baboon is given liquor to drink, and has already start- i ed an Investigation into the case. Medley, who was taken to the hos? pital last Saturday, went to the stall In the livery stable at 1734 O street northwest, where the monkey was chained. He forgot the presence of the brute, and was brought to himself by the grip of hairy arms about his neck and the sting of the animal's teeth biting into his shoulder and thigh. The animal Jumped on Med? ley in the darkness of the stable and bit him ferociously. His associates, with ropes, pitchfork and club finally forced the animal away from tlje negro. The baboon had previously attacked a man. Its owner,says the baboon is only vicious nfter it has been drinking liquor fed It by stablemen. Why Colds Arc r> U | rtu*. ?Hecause you have a lrotc*\1 dlnary colds and ret o.e. - J ' w i -.1 ? u without treatment of any kind, do n A for a moment Imagine ir it colds are not dangerous. Everyone knows that pneumonia an 1 chronic catarrh have their origin in a common cold. Con? sumption is not caused by a cold, but the cold prepares the sysU m for the reception and development of the Kerms that would not otherwise have found lodgment, It Is the same with all Infectious diseases. Diphtheria, scarlet fever, moaaloa and whooping BOUgh are much more likely to be contracted when the child has a cold. You will see from this that more real danger lurks In a cold than In any other of the common ailments. The anal tat and quickest way to cure a colds Is to take Chamberlain's Cough Remedy. The many remarkable cures effected by this preparation have made it a staple article of trade over a large part of the world. For solo by all druggists. Oov. Ansel has offered a reward for the arrest of John Henry Ander? son in Laurens, who Is wanted on the charge of murder, killing his father-in-law. MAY BOUNCE HITCHCOCK. HIS MANAGEMENT OF CAM? PAIGN* CRITICISED HV HE PUBLICANS. National Chairman Will DttfOOS Com plaints With Roosevelt?Not Sum? moned by Roosevelt, Says Secre? tary Loeb. Washington, Oct. 1.?Chairman Hitchcock of the Republican, national committee is expected in Washington tomorrow and the general understand inging here is that he will call upon the president for the purpose of ex? changing views with him regarding the conduct of the campaign in be? half of Secretary Taft. It was reported here today that the president had summoned Mr. Hitch? cock for the purpose of requesting from him an explanation of the many criticisms which have recently come to the White House concerning the management of affairs both in New York and Chicago, but Secre:ary Loeb tonight denied the portion of the re? port which attributed Mr. Hitchcork's coming to a special reuuest from the president. There is, however, ex? cellent authority for the general statement that a number of com? plaints as to the managemen; of the campaign have reached the executive mansion and the understanding Is that President Roosevelt Will welcome the opportunity to talk with Mr. Hitchcock. So far as divulged the censure seems to point to the fact that the national committee has this year fail? ed to cooperate as completely an3 zealously with the congressional com? mittee as hi past years and it is un? derstood that some of the criticisms have come from Republican candi? dates for congress. On the other hand, it has been explained to the president that the national chairman has been very busily engaged In ar? ranging the details of the national campaign and has been Inclined to give the major portion of his atten? tion to that subject rather than to the selection of membeis of congress, because he regarded that as his espe? cial work, while he was confident that the congressional committee would be abundantly able to look after the in? terests of congressional candidates. Reports of discourteous conduct at the national committee headquarters toward Republicans of prominence have also reached the president. ? GIVING OUT. s ? The Struggle Discourages Many a Citi? zen of Sumter. Around all day with an aching back; . . Can't rest at night; Enough to make any one "give out." Doan's Kidney Pills will give re? newed life. They will cure the backache; Cure every kidney ill. Here is Sumter proof that this is so: \ Wm. Burdell, living at 211 Church St., Sumter, S. C, says: "I can highly recommend Doan's Kidney pills for backache and kidney trou? ble. I suffered from backache and sharp shooting pains through my loins, could not rest well at night and In the morning would be very lame and stiff. I was also caused much annoyance during the night on ac? count of the too frequent action of the kidneys, the secretions being very thick and a sediment was noticeable at times. Doan's Kidney Pi'.ls were recommended to me, I procured them at China's drug store, and can truth? fully state that they gave me great re? lief. For some time I have been free from backaches, the secretions are clear and I do not have to arise at night. I feel so much stronger and better that I can highly recom? mend Doan's Kidney Pills to any person suffering from kidney com? plaint." For sale by all dealers. Price 50 cents. Foster-Mllburn Co., Puffalo, New York, sole agents for tho United States. Remember the name?Doan's?and take no other. 66 CONNECTED WITH OIL. Cliarles Nagel's Law Firm Advisors of Wnter-I*iorco Company. Chicago, Sept. 29.?Charles Nagel of St. Louis, who In the absence of Chairman Hitchcock Is in chargv of the Republican National headquarters, gava out a statement admitting that the law firm of which he la a member Is acting in a professional capacity for the Waters*lores Oil Company. A Card. ?This la to certify that all drugigsts are authorized to refund your money if Foley's Honey and Tar fails to cure your cough or cold. It stops the cough, hoals the lungs and prevents ferloua results from a cold. Cures la grippe cough and prevents pneumo? nia and consumption. Contains no opiates. The genuine is in a yellow package. Refuse substitutes. Slbert's Drug Store. Mr. A. G. Kollock has removed to Columbia, where he will engage in the Insurance business, having pur? chased the insurance department of tho real estate and Insurance business of Walker, Ravenel ft Co.?Darlington News. ?DeWitt's Little Early Risers nre the famous little pills, easy to take, safe, sure and gentle. Get early Ris? ers. They are the best pills made. We sell them. Sold by all druggists. The Kind Yon Have Always Bought, and which has been in use for over 30 years, has borne the signature of and has been made under his per* ffl-f j1* sonal supervision since its infancy* f-cUcAj/li Allow no one to deceive you in this* All Counterfeits, Imitations and " Just-as-good" are but Experiments that trifle with and endanger the health of Infants and Children?Experience against Experiment? What is CASTORIA Castorla is a harmless substitute for Castor Oil, Pare* goric, Drops and Soothing Syrups. It is Pleasant. It contains neither Opium, Morphine, nor other Narcotic substance. Its age is its guarantee* It destroys Worms and allays Feverishness. It cures Diarrhoea and Wind Colic. It relieves Teething Troubles, cures Constipation and Flatulency. It assimilates the Food, regulates the Stomach and Bowels, giving healthy and natural sleep. The Children's Panacea?The Mother's Friend. GENUINE CASTORIA ALWAYS Bears the Signature of The Kind You Have Always Bought In Use For Over 30 Years. TUB SKNTAUM OMMRT, TV MUMMT STUCKT. NKW TOUR OTT*. OVER SHADDOCK'S ROUUTE. College Men Have Located Historic Line of March. Cumberland, Md., Sept. 23.?The college professors and students who left Cumberland more thin a month ago to trace the route taken by Gen? eral Braddock when he marched to the relief of Fort Duquesne, yesterday finished their itinerary. Nearly all the party dropped out. The men who finished were H. W. Temple of Wash? ington and Jefferson College; J. L. Kalf, of Michigan, and John K. La cock, of Harvard. Their work 'until reaching Circleville, Pa., was compar tively easy, but here two routes were pointed out. The explorers got on two blind trails and, finally, under the guidance of S. P. Mclntyrei of Jack sonvile. the struck the right one, which will be mapped. The men started their final search near Circleville. At this place a grave had been marked. Three feet below the surface a skeleton was unearthed and a pair of silver shoe buckles found. From this farm the trail led to the Larimer farm and across the Taylor farm. At the latter place four graves were fpund. A ravine to Jack's run doubtless was used. The army it is thought found pro? gress barred by precipices, and the Monongahela was crossed at this point. Once across, a few miles brought the soldiers opposite Turtile creek. Recrosslng, they fell into am? bush and were routed. The investi? gators say there is no question in their minds about this being the right road. They largely base their opinion on the discovery of the graves of soldiers, supposedly buried along the line of march. The explorers will go over every part of the battlefield now that the route as been com? pleted. The concensus of opinion is that the battlefield is near Thirteenth street and Braddock avenue. Braddock. They will search the hills above the city where the remains of old fortifications may be seen. Material has been gath? ered for an illustrated article, which will be published in book form.?Bal? timore Sun. More Than Kiiough is Too Much. ?To maintain health, a mature msn or woman needs just enough food to repair the waste and. supply energy and body heat. The habitual con? sumption of more food than is neces? sary for these purposes is the prime cause of stomach troubles, rhtuma tism and disorders of the kidneys. If troubled with indigestion, revise your diet. let reason and not appetite con? trol and take a few doses of Cham? berlain's Stomach and Liver Tablets and you will soon be all right again. For sale by all druggist. F. W. MinshalL an Abbeville con? tractor, submitted the lowest bid for the erection of the Greenwood post ortice, his bid being $42,*>,,M A Boon to KMerly People. ?Most elderly people have some kidney or btadder disorder that is both painful and dangerous. Foley's Kidney Remedy has proven a boon to many eld. i ly people ;?<= it stimulates the urinary organs, corercts, irregu? larities and tones up the whole sys? tem. Commence taking Foley'i Kid? ney Remedy at once and be vigorous. Slbert's Drug Store. The reformed men in paradise must bore even the angels. GUILTY OF MANSLAUGHTER. Garrison Sentenced to Two Years In the Penitentiary. Lauren?, Oct 2.?J. Henry Garri? son of Gray Court, who was tabs morning convicted of manslaughter, was this afternoon sentenced to two* years at hard labor in the State pen? itentiary, the motion :or a new trial being overruled by Judge Memminger. The attorneys for the defense will car? ry the matter to the supreme court and in all likelihood it will come up in January. Garrison is out on the same bond of $500 that was given August 1, when he wan released pend? ing the trial held yesterday. She that fishes for love ir liable to catch?any old thin*;. DRING , Laxative Fruit Syrup Pleasant to take The new laxative. Docs not gripe or nauseate. Cures stomach and liver ! troubles and chronic con? stipation by restoring the natural action of the stom? ach, liver and bowels. Refus? embatltute?. Prtc? 50o> SIEBERTS DRUG STORE. Diarrhoea When you want a quick cure without any loss of time, and one that is followed by no bed results, use Chamberlain's Colic, Cholera and Diarrhoea Romedy ylt never fVvI'.s a:i?1 is r'er.sant to take. K is eq . ' / va\v. . .e for c.:i dren. It is fiunc js for its enres over a large p;i.t ol the civilized world PATENTS enOCURED A1D DEFEN OED. **nd SMVUHrorphoto, for wpert March and free report. Free aTeioa. how to obtain patent*, trade m?U copyright*, etc, (n ?ll countries. " Business direct with Washington saves time, money and often the patent. Patent and Infringement Practica Exclusively. Write or oorae to us at ?IS Statt Strwt, ???. Vaitat ttatai rat?* OAc?, washington, D. C._ GASNOWI KILLthe couch mo CURE ths LUN w? Dr. King's New Discovery IFOR C8?DS*8 J&Sf Um ALL THROAT AND L?MQ ggH GUARANTEED SATISFAO OR MONEY REFUNDED.