The opinion of the court was delivered by
McIvee, A. J.On May 22d, 1872, the plaintiff executed a deed to the Port Royal Railroad Company for a strip of land two hundred feet wide and about one mile and a half in length, running through a tract of land known as the Cathwood plantation. The estate conveyed by this deed was upon certain conditions, the only one with which we are at present concerned being expressed in the following language: “To have and to hold the said strip of land * * * unto the said party of the second part, their successors and assigns, forever: provided always, and this deed is upon the express conditions. * * * *5712. That the system of drainage shall remain the same as now, except that such ditches as have been filled up by the party of the second part.are to be re-opened by them, 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 deed, though characterized in the recital as an indenture, was signed only by the plaintiff, and must be regarded as a deed-poll.
All the property of the Port Eoyal Eailroad Company was sold and the defendant company became the purchaser and Avent into possession in October, 1878, the deed being dated the third of that month, though the sale was not confirmed until May 23d, 1879. On June 23d, 1879, this action Avas commenced, in which the plaintiff alleged íavo causes of action. Under the first the plaintiff sought to recover possession of the strip of land above mentioned upon the ground that the conditions upon which the land Avas conveyed had been broken and that thereby the estate of the grantee AAras forfeited. The second cause of action was alleged in the following words: “ That said defendants having wrongfully taken possession of said tract of land aforesaid, have continued the construction and running of a railroad through the same, and because of the negligent construction of said road-bed, the culverts, trestles and mud-sills, so continued negligently and unlaAvfully, said defendants have damaged and almost completely destroyed the system of drainage which existed on the plantation of Cathwood aforesaid, by closing up and obstructing the ditches and canals Avhiclr supported said system, thus causing to the plaintiff the loss of his crops and great deterioration in the value of his land, to the damage of the plaintiff eight thousand dollars.”
The defendant demurred to so much of the complaint as set out the second cause of action upon the ground that the facts therein stated were not sufficient to constitute a cause of action. This demurrer was overruled and the case went to trial before a jury, Avho. rendered a verdict in favor of the plaintiff for the land and for a large amount as damages. Upon appeal, this court held (15 S. O. 10) that the above-mentioned deed did create an estate upon condition, but as it was conceded that there had been no-such entry or claim by the plaintiff before this action was commenced as would revest the plaintiff with. the title, that the *572action to recover possession of the land could not be maintained. It was also held, that the demurrer was properly overruled, but a new trial was ordered on the second cause of action beeausd the Circuit judge refused to charge as requested by the defendant— “that the jury could not find damages for anything done prior to the possession of the defendant” — this court holding that the charge as given to the jury was calculated to mislead them as to this point.
When the case came on for a new trial, the defendant, at the close of the testimony adduced by the plaintiff, moved for a non-suit upon various gi'ounds, which motion being refused, the case went to the jury, the defendant declining to offer any evidence, and a verdict for eight thousand dollars was rendered in favor of the plaintiff. The defendant now renews the motion for a non-suit here, and appeals on the ground that the Circuit judge refused to charge any of the several propositions as submitted by the defendant, and upon exceptions to various propositions of law charged by the judge. Under the view which we take of the case, it will not be necessary to consider the several grounds of appeal seriatim.
The complaint in setting out the second cause of action substantially alleges that the defendant by continuing the construction and running of a railroad through the said strip of land had damaged and almost completely destroyed the system of drainage which previously existed on Cathwood plantation by closing up and obstructing the ditches and canals which constituted a part of such system. If these allegations were true, then the plaintiff' had a good cause of action, for they practically amounted to an allegation that the defendant had obstructed the drainage of plaintiff's land by closing up certain ditches necessary to secure that end. Hence, the demurrer to that portion of the complaint which set out the second cause of action was properly overruled, because such demurrer admitted the truth of the facts as alleged in the complaint, and if those allegations were true, then the plaintiff did have a cause of action.
It seems to us that the fundamental inquiry in this case is whether the present defendant was under any obligation to remove the obstructions which had been placed in the ditches *573across the said strip of land by the former company, and, if not, whether the present defendant had done any act tending to increase the obstructions placed in said ditches by the former company or to prevent the plaintiff from removing the same.
The defendant bought the strip of land subject to the right of the plaintiff to drain Cathwood plantation through the ditches across said strip, and must hold it subject to that easement. But this would not impose any obligation upon the defendant to remove any obstructions which may have been placed in said ditches by another, unless there was some personal covenant or some covenant running with the land binding the defendant to keep said ditches open and free from obstructions. There is no pretense that there was any such personal covenant on the part of the defendant, and the only inquiry, therefore, is whether the terms of the deed from the plaintiff to the former company created such a covenant running with the land as would bind the defendant to keep the ditches open and free from obstructions, to the depth necessary to maintain the' system of drainage originally established by the plaintiff. This court has already decided that said deed created an estate upon condition; and although there are cases in which a deed has been held to contain both a condition and a covenant, yet in those cases it will be found that there are words, either expressly or by necessary implication, creating a covenant and that the deed is in the form of an indenture and not a deed-poll. See the former decision in this case (15 S. C. 10), and also the recent decision of the Supreme Court of the United States, rendered at October Term, 1881, in the case of Hale v. Finch, 104 U. S. 261.
Here, the deed contains no words expressly creating a covenant, and there are none which necessarily imply one. The words relied on are contained in a deed-poll and not in an indenture, and there is nothing to bind the grantee to the performance of any covenant. We do not mean to say that in no case can a covenant binding the grantee be created by a deed-poll, but only mention the form of tbe deed as one of the circumstances going to negative the idea that the intention was to create a covenant in this case. As was very pertinently said by the Chief Justice in delivering the former opinion in this case: “ If Hammond had *574intended to rely for his protection upon a covenant by the grantee, would he not have taken a separate instrument properly prepared and executed ? The fact that he did not do this affords a strong presumption that he preferred the right to enforce forfeiture as the most effectual means of protection.”
It follows from this that the mere failure of the defendant to remove the obstructions which had been placed in the ditches by the former company affords no cause of action against the present company. The plaintiff must go further and show that by some act of the defendant the plaintiff's system of drainage has been obstructed, or that the obstructions caused by the former company have been increased.
We do not think that the plaintiff's only remedy was to enforce a forfeiture of the estate, for even in the absence of any covenant binding the defendant to keep the ditches open through the said strip of land, the defendant might under this action be made liable for any damages resulting from any act of the defendant which tended to injure the plaintiff's system of drainage, or impair its efficiency. The jury should, therefore, have been instructed to inquire whether the defendant had in any way obstructed the drainage or increased the obstructions caused by the acts of the former company, and, if so, to give such damages as resulted from such acts of the defendant. But we think that the Circuit judge was in error in saying to the jury, in effect, that the defendant was liable for any damages caused by the failure to remove the obstructions caused by the acts of the former company and “ to restore the system of drainage as it existed on May 22d, 1872.” The duty of defendant was simply passive, not active, and its only obligation was not to obstruct the system of drainage originally established by the plaintiff, and to permit the plaintiff to keep up that system.
Under this view of the case the other questions suggested by the grounds of appeal cannot properly arise, and need not, therefore, be considered.
The judgment of this court is that the judgment of the Circuit Com-t be reversed, and that the case be remanded to that court for a new trial.
Simpson, C. J., and McGowan, A. J., concurred.