Lampley v. Atl. Coast Line R. Co

• Decision Date: 15 April 1902
• Citation: 63 S.C. 462,41 S.E. 517
• Parties: LAMPLEY v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

41 S.E. 517

63 S.C. 462

LAMPLEY

v.ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina.

April 15, 1902.

RAILROADS—OBSTRUCTING WATER COURSE-OVERFLOWING LANDS—DAMAGES—INSTRUCTIONS—NEW TRIAL.

1. Where a railroad so constructed an embankment as to prevent the flow of 80 per cent, of the water through the occasional openings, it is proof of negligent construction in violation of the rights of adjoining landowners,

2. Where a new trial is granted as to one cause of action, and the verdict is a general one, it is granted as to the other causes.

3. Where defendant desires more specific instructions, he should request them.

4. A complaint alleging that plaintiff's crop of oats was destroyed by a freshet by reason of the fact that the waters were held on such oats by the negligent construction of defendant's embankment longer than they would have been, and were collected in great volumes above such embankment, and discharged with great force through the narrow and insufficient openings, whereby his land was washed away by its force, states a cause of action.

5. Where a ground of objection to evidence was not stated when the evidence was offered, the objection cannot be reviewed.

6. Damages caused by the overflowing of land through negligent construction of a railroad embankment, where the crops were immature, consist of the rental value of the land, the cost of fertilization, cost of preparation and cultivation of the crops, value of the services of the owner in overlooking the work, and interest on amount lost until verdict.

Appeal from common pleas circuit court of Darlington county; Gary, Judge. Action by John C. Lampley against the Atlantic Coast Line Railroad Company. From judgment in favor of plaintiff and order as to new trial, both parties appeal. Reversed.

Geo. W. Brown, Stevenson & Matheson, and A. M. Rankin, for appellant.

J. T. Barron, E. Keith Dargan, and Woods & Macfarlan, for appellee.

GARY, A. J. The complaint sets forth two causes of action. The railroad track crosses the Pee Dee river and runs for about three miles through the low grounds, and when there is a flood the river is about three miles wide. The track is laid on embankments through these low grounds, with occasional openings, on trestlework. The plaintiff owns land both above and below the railroad, and also leased and planted a large tract above the railroad. There was testimony to the effect that the means of escape for the water were insufficient. The plaintiff complains: (1) That his crop of oats for 1899 was destroyed by the freshets in the river, by reason of the fact that they were held on those lands above and also on those below longer than they would have been without said dam. (2) By the waters being collected in great volume above said embankment, and being discharged with great force through the narrow and insufficient openings, his land below was washed off by its force. The jury rendered a verdict in favor of the plaintiff for $350.

The record contains the following statement: "Upon the reading of the complaint the defendant submitted an oral demurrer, having complied with the rule of court relating thereto, and moved to dismiss the same upon the ground that the said complaint failed to state facts sufficient to constitute a cause of action, because the plaintiff's alleged damage as to both causes of action arose from diffusion and overflow of the freshet water of the Great Pee Dee river, which had diffused itself in a time of freshet over his cultivated lands; and that said water was a common enemy, and that no right of action for damage thereby could arise against the defendant; and upon the further ground that the allegations of the complaint as to overflow of surface water, whether separately stated as a distinct cause of action or not, were insufficient to base a claim for damages upon against defendant, and should be dismissed, and stricken from the complaint. The demurrer was overruled by the presiding judge. After the rendition of the verdict, defendant duly moved the court for a new trial upon the grounds that the verdict was contrary to the charge of the judge in the following particulars: (1) Because his honor charged the jury, in effect, that the damages arising merely by backing or retention of surface water would not give plaintiff a right of action for damages, and there was no evidence of damage from any other cause. (2) Because his honor charged the jury, in effect, that the railroad company was not required to provide against extraordinary floods and freshets, and the undisputed testimony was that the freshet to which plaintiff laid his damage was of such character, —indeed, was one of the largest ever known. (3) Because his honor charged the jury, in effect, that as to damages on account of obstruction of the river the jury must conclude that the railroad bridge or piers wrongfully obstructed the running stream, and there was no evidence to that effect. (4) Because there was absolutely no proof upon which the jury could legally estimate the damage to the plaintiff's crops under the charge of the court as to what the true measure of damage was, his honor having charged the jury, in effect, that the damage must be proved, and that speculative damages could not be found. The other grounds of the motion related to the insufficiency of the testimony to support the verdict, and are not involved in this appeal. The motion for a new trial was refused, but the presiding judge thereafter passed the following order upon said motion: 'The complaint herein contains two causes of action, separately stated and numbered as such. Under the first, two elements of damages are alleged, —one to real...