May 4, 1906. The defendant occupants, represented by Messrs. Butler Osborne and J.C. Jeffries, appeal from the orders of Judges Aldrich, Purdy and Townsend on numerous exceptions. These exceptions will not be noticed in detail, as in our view they are controlled by the question whether Judge Aldrich erred in adjudging defendant occupants liable for "the rental value (ground rent) of the premises occupied by them." If Judge Aldrich was right in this, then we think his order was properly construed by the referee and Judges Purdy and Townsend, and that their rulings and conclusions were in accordance with the principles of that decree, which they had no right to review.
The vital question, then, is presented by appellants' second exception to the decree of Judge Aldrich charging error, *Page 330 "In holding that these defendants were liable to plaintiffs and those in interest with them in any way whatever, and especially for rental value, the pleadings and evidence showing that the land so occupied had been deeded in fee simple to the railroad company for `railroad and depot purposes,' and that the fee in said land was in the railroad company, leaving no interest whatever in plaintiffs and their grantors, save only the right to prevent a use different from that mentioned in said deed; that the provision `for railroad and depot purposes' contained in said deeds was nothing more than a covenant running with the land, or a condition subsequent, and his Honor should have so held, and should have held that a breach thereof by the railroad company by allowing defendants to use said lands for other than `railroad and depot purposes,' would not entitle the plaintiffs to recover rents or rental value from these defendants, but at most would only entitle plaintiffs to enjoin such use, and bring an action for damages for a breach of such covenant against the railroad company."
The restrictions on the use of the premises to "railroad and depot purposes," if effective, must be construed either as a condition subsequent involving forfeiture of the fee on breach of the condition, or as a covenant running with the land for breach, of which parties interested may recover damages in an action at law or may enjoin such breach in equity, and then recover such damages as Court may properly award.
The effect of the decision of the Circuit Court was not to treat the use of the premises for other than railroad purposes as the breach of a condition subsequent, but as the breach of a covenant running with the land, binding upon the grantee by the acceptance of the deed and the premises so conveyed. The Circuit Court held the fee and right of possession to remain in the railway company, and this conclusion is not excepted to by any one, and is, therefore, the law of the case. This utterly destroys any basis for holding defendants liable to pay plaintiffs the rental value of the lots occupied by them, *Page 331 as the claim for rents and profits or rental value depend upon the claimant's right to the fee or possession of the land. The present case is distinguishable from the case of Ragsdale v. Ry., 60 S.C. 381, 38 S.E., 609, as that was an action for damages by the owner of the fee against parties using the property in violation of his rights as such owner. The rental value of the premises occupied cannot be treated as the measure of damages that should be awarded plaintiffs. Such restrictive agreements as to the use of property by some Courts are treated as equitable easements, by other Courts as equities simply. As indicated by the recitals in the deeds there is little doubt that the grantors in said deeds intended the restriction on the use of the premises conveyed as a benefit to the remainder of the lands held by them. In such cases in an action for the breach of the covenant, the damages should be such injury as naturally and proximately resulted from the breach, and the measure of such damages is ordinarily the amount which the adjacent lands of plaintiff would have been increased in value if the contract had been complied with. Louisville R.R. Co. v.Neafus, 93 Ky., 54; Mobile Montgomery Ry. Co. v. Gilmer,85 Ala., 436. But the plaintiffs, neither in their complaint nor evidence, seek any such damages, but throughout have sought to recover rental value of the premises occupied, which theory as already shown cannot be maintained. At most, the evidence shows merely nominal damages involved in the breach of contract.
This conclusion makes it necessary to reverse the decree of Judge Aldrich in so far as it made the defendant occupants account for the rental value of the lots respectively occupied by them and as a necessary consequence to reverse the subsequent orders of Judges Purdy and Townsend based thereon and carrying the same into effect.
The defendant railway companies except only to the decree of Judge Aldrich, making them liable for the costs of the action, contending that if liable for costs at all they *Page 332 should not be held liable for the costs which accrued after the decree of Judge Aldrich and in the litigation between plaintiffs and defendant occupants as to the matter of rents. We will not disturb the order of Judge Aldrich in so far as it makes defendant railway company liable for the costs of the action up to the filing of the decree, but do not think it just to make the defendant railway company chargeable for any costs which have accrued since the filing of the decree in the litigation between plaintiff and defendant occupants over the matter of rents, and in this respect we also modify the decree of Judge Aldrich.
It is the judgment of this Court, that the decree of Judge Aldrich herein be modified in the particulars stated in this opinion, but that it be affirmed in all other respects, and further, that the orders of Judges Purdy and Townsend be reversed.