Hilton v. Duke Power Company, 7546.

• Decision Date: 01 April 1958
• Docket Number: No. 7546.,7546.
• Citation: 254 F.2d 118
• Parties: J. Abe HILTON, Appellant, v. DUKE POWER COMPANY, a corporation organized and existing under the laws of one of the states of the Union, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

254 F.2d 118 (1958)

J. Abe HILTON, Appellant, v. DUKE POWER COMPANY, a corporation organized and existing under the laws of one of the states of the Union, Appellee.

No. 7546.

United States Court of Appeals Fourth Circuit.

Argued January 10, 1958.

Decided April 1, 1958.

Richard E. Richards, Lancaster, S. C. (Richards, Caskey & Richards, Lancaster, S. C., and H. Simmons Tate, Jr., Columbia, S. C., on brief), for appellant.

Carl Horn, Jr., Charlotte, N. C., and Douglas McKay, Columbia, S. C. (W. S. O'B. Robinson, Jr., Charlotte, N. C., on brief), for appellee.

Before SOPER and SOBELOFF, Circuit Judges, and STANLEY, District Judge.

SOBELOFF, Circuit Judge.

A South Carolina landowner's rights growing out of damage to his lands by the maintenance of a neighboring dam are before us in this appeal.

In 1919, Wateree Power Company, in the exercise of its right of eminent domain, acquired land and built a dam on the Wateree River to a height of 212 feet above sea level. In 1925 the dam was raised to 218 feet, and at all times since then the impounded waters have been maintained at that level. The defendant, Duke Power Company, acquired the dam and lake, and all appurtenant rights in 1927.

The plaintiff's lands lie twelve miles to the north and upstream from the dam near Liberty Hill, South Carolina. They consist of four contiguous tracts aggregating approximately 2,000 acres. They extend for a distance of two miles and are traversed by a Wateree River tributary, known as Beaver Creek, and its five branches.

Before the erection of the dam, the plaintiff, J. Abe Hilton, contends, the natural flow of the waters provided ample drainage, and the same conditions continued for a number of years after the dam was built. Still waters, in the lake formed behind the dam, however, caused silt to accumulate in Beaver Creek and its branches. The silting continued, and gradually the creek banks, which had averaged six to eight feet, were diminished so that there were no banks on the creek or its branches over a foot high. Consequently, beginning with the southernmost portions of plaintiff's lands, those nearest the dam, the creek and its branches overflowed, depositing water and silt.

Hilton brought his action on September 1, 1955, in a South Carolina state court, but the defendant, a New Jersey corporation, had the case removed to the United States District Court for the Eastern District of South Carolina. When suit was filed, over 200 acres of Hilton's land had become unfit for cultivation or pasturage.

Issues and Proceedings in District Court

The plaintiff's case was predicated upon two theories: 1) that the invasion of his land by water and silt constituted a continuing trespass by Duke; 2) that the dam and lake were being maintained negligently, and that the injuries which the plaintiff suffered could be abated by dredging the land under the impounded waters and Beaver Creek.

Duke Power Company interposed a general denial that Hilton's lands had suffered any injury since the erection of the dam, but added a number of legal defenses. It contended that having maintained the present level of the impounded waters for more than twenty years, it had acquired a prescriptive right; and also that plaintiff's cause of action had accrued more than six years prior to the commencement of the suit and was therefore barred by limitations.

Duke Power contended, moreover, as to the Hough tract, the southernmost of the four owned by the plaintiff, and nearest the dam, that plaintiff's father, and predecessor in title, obtained a judgment in 1917 which bars the present action. As to the plaintiff's land lying immediately north of the Hough tract, known as the Winkler tract, a similar defense was interposed, based upon a deed executed in 1921 by Mrs. Sallie Winkler, the plaintiff's predecessor in title. Still another defense rests upon a release executed by the plaintiff and his parents in 1944. This particular defense pertains to three of the plaintiff's tracts of land, namely the Hough tract, the Winkler tract adjoining it, and the tract adjoining the Winkler tract to the northwest, known as the Hilton Home Place.

The case was tried before a jury, and at the close of all the evidence, the Judge gave a full and comprehensive charge upon all of the above issues. Before the charge the plaintiff withdrew any claim for damages arising out of the Hough tract.

The jury were told in substance that Mrs. Winkler's deed operated to release the defendant for all "foreseeable" injuries to her land and that Hilton acquired her land subject to Duke's rights under the release. They were also instructed that the release executed by the Hiltons in 1944 "extinguished every existing right that the plaintiff may have had against the defendant on account of the maintaining of the lake in question," and that this included such future conditions as were "reasonably foreseeable as natural consequences and results of the impounding of that water as it was then."

Finally as to the defendant's claim that the entire action is barred by limitations, the District Judge charged the jury that, "the right to sue arises when injury occurs. If future injury or damage is reasonably apparent and reasonably estimable, an action for total damages will arise thereon. And such an existing complete cause of action could not be divided so that the claimant might maintain successive suits for damages. * * If, however, * * * the nature of the injury complained of, by reason of the maintenance of the nuisance or claimed nuisance is such that only present damage, present and prior damage, can be reasonably ascertained and estimated, and future damage can not be ascertained with reasonable accuracy, or the result reasonably estimated, then successive actions may be brought to recover successive damages as they become apparent and effective." The jury were instructed that the applicable statute of limitations is six years.

A verdict was returned for the plaintiff in the amount of $5,000, but the Court later granted defendant's motion for a judgment N. O. V.

In the District Judge's order, which embodies a discussion of his reasons, he held that there was no evidence of negligence on the defendant's part and no evidence that the nuisance could be practicably abated by dredging as claimed by the plaintiff; "that silting at points where natural streams flow into the lake is a natural and usual occurrence"; that the silting began to injure the plaintiff's land six to twelve years before this action was begun; and that therefore the plaintiff's recovery is barred.

Limitations and Nature of the Action

Although its dam is constructed and maintained under proper governmental authority and "in the most skillful manner," a power company will nevertheless be liable if the dam is the direct and proximate cause of injury to neighboring property. This rule of absolute liability has been formulated by the Supreme Court of South Carolina as an application of the self-executing State constitutional provision that private property shall not be taken for public use without just compensation. McDaniel v. Greeneville-Carolina Power Co., 1913, 95 S.C. 268, 78 S.E. 980, 981, 6 A.L.R. 1321; Constitution of the State of South Carolina (1895), Art. 1, Sec. 17. While the right is constitutionally created, it is nevertheless settled law that the six-year South Carolina statute of limitations for damage or injury to real estate (South Carolina Code (1952), Sec. 10-143) "is a statute of repose, affects the remedy, not the right," and may operate to bar recovery by a neighboring landowner who has suffered injury from the maintenance of a dam. Webb v. Greenwood County, 1956, 229 S.C. 267, 92 S.E.2d 688, 694.

The effect of the statute of limitations and the extent to which it is applicable depend upon the nature of the cause of action and the time when it accrues. The South Carolina rule is that there is a taking within the meaning of the constitution, and consequently an accrual of a right of action, when "neighboring real estate, belonging to a private owner, is actually invaded by superinduced additions of water, earth, sand or other material * * *." Milhous v. State Highway Dept., 194 S.C. 33, 8 S.E. 2d 852, 854, 128 A.L.R. 1186, quoting 10 R.C.L. 70. A neighboring landowner, however, acquires no rights against the owner of the dam and limitations do not begin to run until an actual injury occurs. Lynn v. Thomson, 1881, 17 S.C. 129; McDaniel v. Greenville-Carolina Power Co., 1913, 95 S.C. 268, 78 S.E. 980, 6 A.L.R. 1321.

Once some actual injury is suffered, however, if the cause is permanent, non-negligent, and not subject to abatement, a single right of action accrues, in which the landowner must seek recovery for both past and future damages. Rice Hope Plantation v. South Carolina P. Serv, Auth., 1950, 216 S.C. 500, 59 S.E.2d 132, 140; Webb v. Greenwood County, 1956, 229 S.C. 267, 92 S.E.2d 688.¹

But the right to future damages, and the corresponding obligation to seek them in a single suit, are not automatic. The answer depends upon whether the "permanency and extent" of the prospective injuries are, or should be, known to the landowner. Webb v. Greenwood County, 1956, 229 S.C. 267, 92 S.E.2d 688, 695. The rule has twin objectives. The first is to protect defendants against the harassment of successive suits in circumstances where a single action could fully adjudicate the rights of the parties. The other, equally important, is to avoid the injustice to plaintiffs of having limitations begin to run against them before their right to sue has matured.

If the existing injury must necessarily continue or increase, and if the amount of the damage can be determined or estimated, the cause of action as to future damage accrues at once. Webb v. Greenwood County, 1956, 229 S.C. 267, 92 S.E.2d 688. 56 Am.Jur., "Waters," Sec. 443, p. 858. Cf. Commercial Drilling Co. v. Kennedy, 1935, 172 Okl. 475, 45...