
    6787
    ATLANTIC AND CHARLOTTE AIR LINE RY. CO. v. VICTOR MFG. CO.
    Equity — Reference—Issues.—An action to enjoin continued trespass and for compensatory damages is in equity, and defenses thereto of estoppel, purchaser for value without notice and reformation of deed alleged to have been obtained by fraud are equitable, and these issues properly referred to master.
    Before Dantzujr, J., Spartanburg,
    December, 1906
    Affirmed.
    Action by Atlantic and Charlotte Air Dine Railway Company and Southern Railway Company against Victor Manufacturing Company. From order referring certain issues to master, defendant appeals.
    
      Messrs. Haynsvoorth, Patterson & Blythe and Simpson & Bornear, for appellant.
    The former cite: 16 Cyc., 809', 725; 100 U. S., 578; 122 U. S,, .241; 77 St C., 420 ; 57 S. C., 279, 507; 31 S. C., 155; 1 Bay., 241; Code, 1902, 2445; 38 S. C., 211; 3 S. C., 570; 66 S. C., 77; 75 S. €., 334, 318; 77 S. C., 1.
    
      
      Messrs. Sanders & DePftss and Nichols & Jones, contra.
    Tine former cite: 16 S. 'C., 331; 12 S'. C., 108; 23 S. C., 392; 54 S. C, 157; 52 S. C., 461'; 70 S. >C., 284; 2 Pom. E'q. J.ur., Secs. 801, 802, 870, 910'; 12 Am. R., Ill; 45 S. C., 512; 67 S, C., 389; 41 & C., 304.
    
      Messrs. Nichols & Jones
    
    cite: Code of Proc., 274, 275; 27 S. C., 408; 56 S'. C., 298; Rice, 388; 119 U. S., 545; 12 S. C., 106; Code 1902', 2445, 2446; 20 Ency., 719.
    March 3, 1908.
   The opinion of the Court was delivered by

Mr. Justice Gary.

This appeal is from' an order referring certain issues to the master.

The complaint alleges that plaintiffs, under the powers conferred by their charter, acquired a right of way through the lands of Bidsy MeKittrick, near the corporate limits of the town of Greer, consisting of a sitripi of land extending one hundred feet on each side of the railway track.

“That on or about the . .i. ."day of ...1904, the defendant, against the protest of the plaintiffs herein, and without their knowledge or oopsent, entered upon the strip of land hereinbefore described, upon which Bidsy McKittrick formerly lived, and partly within the town of Greer, a station upon the railroad trade of the plaintiffs herein, and commenced to build and construct, and continues or threaten®’ to continue to construct, and to occupy and use certain dwelling-houses within the limits’ of the said strip of land hereinbefore described, intending the same to be permanent structures thereon, claiming the right to occupy, enter upon and use said lands for the purpose of building, constructing and occupying said dwelling-houses.

“That the plaintiffs have given notice to the defendant, forbidding him to enter upon the said strip of land to build and construct said dwelling-houses thereon, but that the defendant has treated the notice with defiance, and claims that lie is entitled' to enter upon said land, and to build said houses -thereon, ain-d' to occupy and use the sarnie as his own.

“That the said' dwelling-houses are permanent structures-, and 'their -continuance upon the said strip of land is- a continual trespass upon th-e rights and property of the plaintiffs herein, who- are in possession! of the same.”

The prayer of the complaint was for an injunction and $10-0.00'damlages- for the alleged trespass.

The defendant set up the fallowing defenses:

First: That the plaintiffs are estopped, by reason of their acquiescence in the claim of Bidsy M-cKittrick and her grantees- toi fifty feet of the land now: claimed by the plaintiffs as- a right of way.

Second: Adverse possession in the defendant and those under whom it claims far more than twenty years.

Third: That the defendant is a -purchaser for Value without notice. That believing it wias the owner in fee, it constructed dwelling-houses on said lot, at considerable expense, which enhanced) the value of the property ta the extent of $3,000, and sets up the same as betterments.

Fourth: That the deed executed 'by Bi-dsy McKittrick to the railway company in 1871, purporting to grant a right of Way extending -one hundred feet om each' side of -the track, was only intended to give fifty feet on each side. That the deed is void for fraud, and: should he reformed so as to carry out the intention of the -parties.

His Honor, th-e presiding judge, granted an order referring the issues raised by the first, third and- fourth 'defenses to the master, and the -appeal is from that order.

The 'appellant’s 'exceptions are as follows:

1. “It is submitted that this action is a legal one, and that the defense of estoppel is legal in its character, and it -was error to 'hold that said -defense w&s equitable, and to refer the same to the mlas-ter to take testimony thereon.

2. “It is further submitted that the defense that the defendant is an innocent purchaser for value without notice, interposed as it is to a legal action, is legal in its character, and it wias error to' bold that the same wias equitable, and to order that it he referred to' the master to take testimony thereon.

3. “It is submitted that the defense wias entitled to» have a jury pass upon the question presented by the defense of estoppel and the defense of purchaser for valtoe without notice, and that it was error to refer them to the master for the taking of testimony.

4. “It is submitted that the defense of mistake and misrepresentation set up' in the fourth defense of the answer, being interposed to a legal action, is legal in its character, and that the defendant was 'entitled to have a jury pass thereon, and that it was error to refer to the master the question as to whether the deed should' be reformed.”

The exceptions are predicated upon the theory that the cause of action set forth in the complaint is legal in its nature. We can not accept this construction.

An action for injunction is 'always- equitable, and when the Court, in the exercise of its chancery powers, undertakes to administer such relief, it has jurisdiction to award compensatory damages when there has been a trespass. Bird v. R. R., 8 Rich. Eq., 46; McClellan v. Taylor, 54 S. C., 430, 32 S. E., 527.

The next question that will be considered is, whether there wias error in refusing' the appellant a trial by jury upon the question of estoppel.

In the first piliace, the defense based upon estoppel is equitable in its nature. Quattlebaum v. Taylor, 45 S. C., 512, 23 S. E., 617.

And, in the second place, -the facts upon which the defense of estoppel rests are so interwoven with the equitable 'cause of action set out in the complaint that they partake of the nature of -that action. McLaurin v. Hodges, 43 S. C., 187, 20 S. E., 991.

The exception relative to 'the defense of purchaser for Value without notice can not be sustained, as such plea is always equitable, except under the recording acts, but this is not under the statute. Maxwell v. Foster, 67 S. C., 377, 45 S. E., 927; Armour v. Ross, 75 S. C., 201, 55 S. E., 315.

The last question for determination is, ■whether there wias error in refusing the appellant a trial, 'by jury as to the alleged fraud.

The cases of Miller v. Hughes, 33 S. C., 561, 12 S. E., 419, and DuBose v. Kell, 76 S. C., 313, 56 S. E., 968, show that the courts of law and equity have concurrent jurisdiction of fraud. The exception raising this question must, also, be overruled.

It is the judgment of this; Court, that the judgment of the Circuit Court be affirmed.  