Gray & Shealy v. Charleston & W.C. Ry. Co.

• Decision Date: 29 September 1908
• Citation: 62 S.E. 442,81 S.C. 370
• Parties: GRAY & SHEALY v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

62 S.E. 442

81 S.C. 370

GRAY & SHEALY v. CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina

September 29, 1908

Appeal from Common Pleas Circuit Court of Laurens County; R. C Watts, Judge.

Action by Gray & Shealy against the Charleston & Western Carolina Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed, without prejudice to the right to plaintiffs to bring a new action.

W. C Irby, Jr., Stanyarne Wilson, and Sanders & De Pass, for appellants.

S. J Simpson and Simpson, Cooper & Babb, for respondent.

JONES J.

This action was to recover damages for an alleged nuisance and abatement thereof, and resulted in a verdict and judgment for defendant. The complaint charged that the nuisance was created by the defendant's erecting on its premises in the town of Laurens a high coaling chute, the operation of which caused smoke, dust, cinders, and noise, day and night to the injury of plaintiff's abutting property. The complaint further alleged nuisance, in that the erection of the coal chute obstructed Hance street, a public highway of Laurens, and excluded plaintiff from the use of said street, and wholly prevented and destroyed ingress to plaintiffs' property, to plaintiffs' great damage. The case contains this statement: "No testimony was offered as to the obstruction of the alleged public street referred to in the complaint, for the reason that his honor held at the outset of the case that the remedy for a nuisance of that kind was by indictment, and not by action."

Appellants' first exception is directed against this ruling of the court and the sixth exception is to the following charge relating to that subject: "I charge you as a matter of law that, even if the defendant railway company here have obstructed a public street over there, under the testimony in this case, and under the law, the plaintiffs are not entitled to any damage for that, because, wherever a public road is obstructed, that affects the public generally, and parties can be indicted for obstructing a public road, one that was laid out and dedicated to the public, or where the public have acquired the right to go over-any obstruction and interference with that road the parties can be indicted for and punished. That is a misdemeanor under the laws of this state. So no citizen has a right ordinarily to bring any action for damages for the obstruction of a public road. The public generally is interested in that, and that can be done by indictment." Inasmuch as there was no testimony whatever as to the obstruction of the street, it was not error to charge that there could be no recovery on that ground "under the testimony." Nor was it error to charge that "ordinarily" no citizen has the right to bring an action for damages for obstruction of a highway. The general rule is that indictment is the remedy for obstruction of a public highway. The exception to the rule is that a private citizen may maintain a civil action for damages or abatement with respect to a public nuisance upon allegation and proof of such obstruction and of direct and special damages resulting to him, different in kind from what the public may sustain. The rule and exception has been illustrated by numerous cases in this state. Carey v. Brooks, 1 Hill, 367; McLauchlin v. Railroad, 5 Rich. Law, 590; Steamboat Company v. Railroad Company, 30 S.C. 546, 9 S.E. 650, 4 L. R. A. 209, 14 Am. St. Rep. 923; Steamboat Co. v. Railroad Co., 46 S.C. 336, 24 S.E. 337, 33 L. R. A. 541, 57 Am. St. Rep. 688; Cherry v. Rock Hill, 48 S.C. 560, 26 S.E. 798; Threatt v. Mining Co., 49 S.C. 130, 26...