The opinion
Mr. Chief Justice Watts
(concurring in result) :
The plaintiff claims damages for certain trespass committed on her property by the agents of the defendants, the defendants being road contractors constructing the paved highway between Columbia and Lexington; the complaint alleging that the agents of the defendant entered on her property, trod down her grass, cut down and moved certain small trees and underbrush, and dug a ditch and caused water from a spring to flow through said ditch on to other parts of plaintiff’s premises.
The defendants by their answer allege that any acts committed by them in digging the ditch through plaintiff’s premises were under the authorization and direction of the South Carolina Highway Department; they deny that the plaintiff was injured and ask that the State Highway Department be made a party defendant for the reason that any liability for the acts of the defendant rests upon the said South Carolina State Highway Department.
The defendants duly made a motion to have the said South Carolina State Highway Department made a party defendant to this action, which motion was refused, and this appeal is taken from the order of his Honor, Judge Henry, refusing said motion.
The Highway Department of the state is not a proper or necessary party. The appellants did not innocently enter on the lands of the respondent; Sullivan’s letter showed that.
The exceptions should be overruled under
Murray Drug Co. v. Harris, 77
S. C., 413, 57 S. E., 1109 , and
SaulsBaker Co. v. Atlantic Ry.
Co., 109 S. C., 285, 96 S. E., 118 .