Edwards v. Charlotte

• Decision Date: 29 September 1893
• Citation: 18 S.E. 58,39 S.C. 472
• Court: South Carolina Supreme Court
• Parties: EDWARDS et al. v. CHARLOTTE, C. & A. R. CO.

18 S.E. 58

39 S.C. 472

EDWARDS et al.

v.CHARLOTTE, C. & A. R. CO.

Supreme Court of South Carolina.

Sept. 29, 1893.

Surface Water—Obstruction.

The common-law rule as to the disposition of surface water prevails in South Carolina, and a landowner has a right to take any measures necessary to protect his property therefrom, even if, in so doing, he throws it back on adjacent land, to its damage.

Appeal from common pleas circuit court of Aiken county; I. D. Witherspoon, Judge.

Action by Elizabeth II. Edwards and another against the Charlotte, Columbia & Augusta Railroad Company. Defendant had judgment, and plaintiffs appeal. Affirmed.

Henderson Bros, and John R. Cloy, for appellants.

Cotheau & Abney and Croft & Chafee, for respondent.

If it was necessary for the railroad company to construct an embankment on its right of way in order to protect its roadbed from injury by the surface water, it is not liable for the damages to adjacent land by thus turning the water back onto it: Railroad Co. v. Hammer, 22 Kan. 763; Gibbs v. Williams, 25 Kan. 214; Angell, Water Courses, § 108; 1 Add. Torts, 105; Cooley, Torts, 574; Hil. Torts, 584; Taylor v. Fickar, 64 Ind. 167; Schllchter v. Phillipy, 67 Ind. 201; Gannon v. Hargodon, 10 Allen, 100; Hoyt v. City of Hudson, 27 Wis. 656; Pettigrew v. Village of Evansville, 25 Wis. 223; Fryer v. Warne, 29 Wis. 511; Sowers v. Shiff, 15 La. Ann. 300; Martin v. Jett, 12 La. 503; Walker v. Railway Co., 103 Mass. 10; Morrison v. Railway Co., 67 Me. 353; Moyer v. Railway Co., 88 N. Y. 351; Railway Co. v. Wicker, 74 N. C. 220.

McIVER, C. J. The plaintiff, who is a married woman, joining her husband with her as a coplaintiff, brings this action against the Charlotte, Columbia & Augusta Railroad Company to recover damages alleged to have been done to her property, as well as to her health, by reason of the obstruction, by the defendant company, of the natural flow of surface water over and across the right of way and railroad track of defendant. The allegations in the complaint, substantially, are that some time in the year 1867 the defendant company constructed its railway through the town of Graniteville, over and along Canal street of said town, running north and south, parallel with Horse creek, a natural water course, on the west of the railway; that plaintiff is the lessee of certain premises situate at the northeast corner of Canal street and Cottage, the latter being a street running perpendicular to the former; that on the eastern side of the town of Graniteville the land is hilly, and gradually slopes towards Horse creek; and that the surface water which would accumulate on the eastern side was accustomed to flow, in part, down and along Cottage street, across Canal street, to said Horse creek, previous to the construction of defendant's road, and for some time afterwards, without Injury to plaintiff's premises, but that some time in the year 1878 "the defendant negligently, unlawfully, and unnecessarily" erected a large sand bank, at the intersection of Canal and Cottage streets, whereby the surface water was forced back on plaintiff's premises, and has continued to maintain and increase said sand bank. The defendant claims that the sand bank complained of (which was constructed on defendant's right of way) was necessary to protect its roadbed and right of way from being undermined and washed away by the flow of the surface water, and therefore its construction was no invasion of the legal rights of the plaintiff, and the defendant is not liable for any damages which plaintiff may have sustained by reason of such obstruction of the flow of the surface water. The circuit judge, in effect, charged the jury that the first question for them to determine was whether the construction of the sand bank was necessary for the protection of defendant's roadbed and right of way, and, if so, then the defendant was not liable. The jury, under this instruction, found a verdict in favor of the defendant, and, judgment being entered thereon, the plaintiff appeals upon the several grounds set out in the record. Under the view which we take we do not deem it necessary to repeat these grounds, for the whole case, in our judgment, turns upon the inquiry whether there was any error in the instruction thus given to the jury.

It is not, and cannot be, denied that the rule in regard to interference with the flow of surface water is wholly different from that which prevails in regard to the waters of a natural water course. We shall therefore confine our attention entirely to the rule as to surface water. What that rule is has been the subject of debate in numerous cases in the other states, many of which we have examined in preparing this opinion. Some of the states have adopted what is known as the "civil-law rule, " while others seem to have adopted what is designated as the "intermediate rule, " while others, again, (a majority of the states, as is said in a note to Goddard v. Inhabitants of Harpswell, [24 Atl. Rep. 958,] 30 Amer. St. Rep., at page 391,) adhere to the rule of the common law. In this state, so far as we are...