White v. Barlow , 72 Ga. 887 ( 1884 )

Jackson, Chief Justice.

We think that the evidence in this record shows very clearly title to this ditch in the Georgia Company. By the act of 1866, Pride, Barlow, and such others as should become associated with them as the Georgia Company for mining purpose, were empowered to cut this ditch. They did so and conveyed the water in it to their land, lots 726 and 727, and used it to “ sluice the ore,” to use the mining phrase, to their mill, which seems then to have been operated by steam; and the company,by its tenants, watchmen and servants, controlled it for some years. The company became indebted, judgments were rendered and executions were issued against them, and levied upon the lands to which the ditch conducted the water, and Barlow, the defendant in error, bought these lots of land with the rights, members and appurtenances thereof.

1. In so far as the ditch was cut through and upon the lands thus sold and conveyed by the sheriff, of course the title to the ditch cut thereon passed with the levy upon and title to the land, and it needed no express mention of the ditch, either in the levy or the deed, to carry with the land this ditch, any more than it would need a levy on a ■mill race’ or stream of living water, cut and spread out to irrigate the land, or any other improvement put on it, to include the sale and conveyance of such things with the land. The title to land embraces all on it to any height or depth.

And the water in the ditch makes its value for the purpose for which it was dug, to be employed in and about digging and washing the golden ore and extracting the pure metal therefrom.

Therefore, as the legislature empowered the Georgia Company to dig the ditch from certain creeks, the presumption is that it acquired, in the mode prescribed by the charter, the right to cut the ditch and convey the water over the land of others, after just compensation, and the water thus conveyed to and through the company’s own lands became necessary to the great purpose of their charter—the working of their mine.—and thus the w.ater in the ditch, which terminated in a reservoir of water on their land, became appurtenant to those lots; and thus the title to this necessary appurtenance to these gold lots passed as appurtenant to them by the sheriff’s deed, though the levy and deed of the sheriff made no mention of the ditch in express terms. Washburne on Easements, 12, 15, 40, 42 et seq., 77, 80, 291, 398 ; Angel on Water Courses, 10 Ed., par. 153 (a), 158, 159 ; Imboden et al. vs. Etowah, etc., Co., 70 Ga., 86.

2. But if the plaintiff in error holds under Weaver, as appears in the record, and Weaver, as the testimony shows, used the water under the defendant in error and the Georgia Company, can he question the title of his landlord ?

If such be the case, and the evidence is strong that it is, then it would seem that the tenant could not dispute the landlord’s title, and thus also Barlow’s title would be good against such tenant and one holding under him with notice, and the proof is positive that White ha-1 notice.

We are clear, therefore, that the court did not err in overruling the motion for a new trial on the 1st and 3d grounds of the motion.

3. Was there error which hurt the plaintiff in error in the second ground ? It must be observed that the Pigeon Roost Mining Company is not a party to this writ of error. It is nowhere mentioned in it, and complains of nothing. Therefore, the question is, did the refusal of the court to allow the amendment, to the extent that the demurrer thereto went, hurt White ? Certainly not, because he disclaims all title to the lots which were damaged, and the order of the court on the demurrer is not the denial of so much of it as makes the Pigeon Roost Company a party, but the set-off of damages.

The judgment on the demurrer is, “that so much of said answers as sets forth the injuries to respondents by reason’ of complainant’s having constructed ore-sheds and sluice-ways on respondents’ lands, and praying an injunction against them and for damages by said alleged injuries, and also for damages by reason of filing complainant’s bill in this case, be stricken.” The rest is all left, and the record is that the court precedes this judgment on the demurrer with these words : “ Upon demurrer to the answer of George W. White, defendant, and of the Pigeon Roost Gold Mining Company, it is ordered that,” etc., as just copied. By reference to the answers, it will be seen that the injunction prayed for and the damages asked all relate to the company, and not to the plaintiff in error, and that the plaintiff m error answers as follows: “ That he does not own any interest or claim to the property described in the complainant’s bill, but that.the property described in said complainant’s bill, as the property of this defendant, is the property of the Pigeon Roost Gold Mining Company, and this defendant, George W. White, hereby disclaims and renounces all title, claim or interest in or to the property described in said complainant’s billand further says, “ that he is the president of the Pigeon Roost Gold Mining Company, and was such at the time of filing complainant’s bill, and that the acts complained of were the acts of the said company by said George W. White as president.”

So that this plaintiff in error, George W. White, was not hurt as an individual, and in that character alone he excepts and complains, and assigns error here.

4. The fourth ground cannot be passed on by us, because what statements Weaver made to witness are not set out, and it is impossible to decide whether the ruling them out hurt or not,

5. We cannot see how the amended charter could help or hurt the plaintiff in error, and of course a new trial cannot be granted because it was ruled out.

6. As plaintiff in error disclaimed all title to the ditch, we are unable to see how the 6th and 7th grounds, if wrong, could hurt him; but we think there is no error in eiLher.

7. The eighth ground is that the court erred in charging that, if Weaver was in possession as tenant or agent of Barlow, and united in the conveyance to the Pigeon Roost Company, he would be estoppel, and purchasers under him would likewise. It would have been better had the court added with notice ” after the word u purchasers,” but as it is clear that White had notice, the charge did not hurt him, and if he was president of the company, notice to him was notice to it, if it were complaining here.

8. The ninth ground of the motion embraces a very large extract from the judge’s charge, and does not specify any particular error therein. Under repeated rulings, we do not consider such grounds, because the statute requires that errors must be specially assigned, which is not done, by putting in a motion for a neAv trial many paragraphs of a charge, and singling out none as erroneous, or not specifying how all taken together are erroneous.

But if it were considered, we are unable to discover any error hurtful to the plaintiff in error, or any error hurtful to anybody therein. Substantially, it is right. ;

In conclusion, we cannot understand how one who disclaims all title to, or interest in, the property sued for and recovered can be hurt by a verdict giving to a complainant that property; and if for no other reason, this judgment should he affirmed. We think, however, on a careful examination of the whole record, that the facts abundantly sustain the verdict, and the law therefore upholds it.

Judgment affirmed.