Brandenburg v. Zeigler

• Decision Date: 03 October 1901
• Citation: 39 S.E. 790,62 S.C. 18
• Parties: BRANDENBURG v. ZEIGLER et al.
• Court: South Carolina Supreme Court

39 S.E. 790

62 S.C. 18

BRANDENBURG v. ZEIGLER et al.

Supreme Court of South Carolina

October 3, 1901

Appeal from common pleas circuit court of Orangeburg county; Gary Judge.

Action by Eliza C. Brandenburg, guardian of Minnie Halman and others, against Jesse L. Zeigler and Charlotte Buyck. From an order of nonsuit, plaintiff appeals. Reversed.

Glaze & Herbert and Izlar Bros., for appellant.

Raysor & Summers and J. B. McLauchlin, for respondents.

JONES J.

This is an appeal from an order of nonsuit in an action for damages and to abate a nuisance alleged to result from defendants draining a pond of water which otherwise had no outlet from their lands onto the lands of plaintiffs by means of a ditch cut by them, thereby overflowing and sobbing about four acres of plaintiffs' land, and rendering it unfit for agricultural purposes, and thereby also causing impure water to percolate into plaintiffs' well, and rendering it unfit for drinking purposes, and thereby also causing malaria about plaintiffs' dwelling, to the injury of her health and that of her family. The answer, besides a general denial sets up a prescriptive right to so drain onto plaintiffs' land. The circuit court, in granting the nonsuit, held that the water in question was mere surface water; that defendants could deal with it as a common enemy, and drain it by ditch onto the plaintiffs' land; that any injury resulting therefrom was damnum absque injuria; and that the case was governed by the doctrine announced in Edwards v. Railroad Co., 39 S.C. 472, 18 S.E. 58, 22 L. R. A. 246, 39 Am St. Rep. 746, and Baltzeger v. Railway Co., 54 S.C. 242, 32 S.E. 358, 71 Am. St. Rep. 789. The exceptions raise practically two questions: (1) Whether the water complained of is surface water; (2) whether an upper proprietor has the right by artificial drains to collect surface water, and thereby cast or throw it upon a lower proprietor to his injury.

We agree with the circuit court, that the water in question was mere surface water. The complaint described the water as drained from "a large open pond, basin, or sink, commonly called a 'savanna,' which is naturally and completely surrounded by high hills, and which for the greater part of the time, and especially during rainy seasons, collected and held large quantities of water, which was naturally safely kept and held in said basin, sink, or savanna by means of the surrounding high lands and hills; and that before the grievances hereinafter complained of and mentioned the waters from said pond, basin, or savanna did not and could not reach or in any way affect the said lands of plaintiff," etc. The evidence showed that the only source of supply to this pond or basin was rain falling upon the surrounding high lands, which drained over the surface thereof, and accumulated in the said basin, from which it had no outlet, except by evaporation or percolation, until the cutting of the ditch complained of; that said pond was not permanent; that it was dry at times; that one year it was planted to cotton, and that it was usually planted to rice. Such water is nothing more than mere surface drainage over the face of the surrounding lands sloping to the basin, occasioned by rains, and does not possess the essential characteristics of a water course, viz. a stream of water usually flowing in a definite channel. In a note to Railroad Co. v. Brevoort (C. C.) 62 F. 129, 25 L. R. A. 527, the learned annotator, after collecting many cases on the subject, says: "From all the cases and definitions it would seem that surface water is water on the surface of the ground, the source of which is so temporary or limited as not to be able to maintain for any considerable time a stream or body of water having a well-defined and substantial existence." In the recent case of Lawton v. Railroad Co., 62 S.C. ___, 39 S.E. 752, the court quoted with approval the following definition from 24 Am. & Eng. Enc. Law, 896: "Surface waters are waters of a casual and vagrant character, which ooze through the soil, or diffuse or squander themselves over the surface, following no definite course. They are waters which, though customarily and naturally flowing in a known direction and course, have nevertheless no banks or channels in the soil, and include waters which are diffused over the surface of the ground, and are derived from rains and melting snows, occasional outbursts of water, which at times of freshet or melting of snows descend from the mountains and inundate the country, and the moisture of the wet, spongy, springy, or boggy ground." Under this definition there can be no doubt that the water which supplied the basin or pond was surface water only, and we think that such water would not lose its character as such simply because the water remained ponded in the basin for a time until it disappeared through evaporation or percolation, leaving the bottom of the basin either dry or in a boggy or marshy condition.

We do not agree with the circuit court, however, in the view taken as to the second question stated above. There being some evidence tending to show that plaintiff had sustained injury as alleged by the draining of said water by an artificial channel constructed by defendants, which cast the water onto plaintiffs' lands, where it would not have otherwise gone, the case ought to have been submitted to the jury. It is clearly settled by the decisions of this court that the common-law rule as to surface water prevails in this state. Edwards v. Railroad Co., 39 S.C. 475, 18 S.E. 58, 22 L. R. A. 246, 39 Am. St. Rep. 746; Baltzeger v. Railroad Co., 54 S.C. 245, 32 S.E. 358, 71 Am. St. Rep. 789; Lawton v. Railroad Co., 62 S.C. ___, 39 S.E. 752. In the case first cited, the court, speaking by Chief Justice McIver, said: "Under the common-law rule, surface water is regarded as a common enemy, and every landed proprietor has the right to take any measures necessary to the protection of his own property from its ravages, even if in doing...