Baltzeger v. Carolina Midland Ry. Co.

• Decision Date: 23 February 1899
• Citation: 32 S.E. 358,54 S.C. 242
• Parties: BALTZEGER v. CAROLINA MIDLAND RY. CO.
• Court: South Carolina Supreme Court

32 S.E. 358

54 S.C. 242

BALTZEGER v. CAROLINA MIDLAND RY. CO.

Supreme Court of South Carolina

February 23, 1899

Appeal from common pleas circuit court of Aiken county; R. C. Watts Judge.

Action by G. Jones Baltzeger against the Carolina Midland Railway Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

G. W Croft & Son and R. L. Gunter, for appellant.

Henderson Bros. and Robt. Aldrich, for respondent.

GARY A. J.

The appeal herein is from an order sustaining a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The complaint is as follows: (1) The first paragraph merely alleges the corporate existence of the defendant. (2) "That the plaintiff is the owner of the following described real estate, to wit: 'All that lot of land, with the improvements thereon, containing three acres, more or less situate within the corporate limits of the town of Wagener *** which said premises lie west of the railway track of the defendant in the said town of Wagener, and within a hundred feet from the defendant's line of railway.' That the dwelling house of the plaintiff is upon said premises, and the same is now, and has been for several years past, occupied and used by the plaintiff and his family." (3) "That near to the plaintiff's residence, and running by the same, and across the line of the defendant's railway track, is a hollow or depression in the land, in and through and down which the surface water, in times of rains and floods, has been accustomed, by nature, from time immemorial, to pass and flow through, and thereby affording a complete passage and drainage for all surface waters which were collected and entered into said hollow." (4) "That about the year 1886 or 1887 the Blackville, Alston and Newberry Railroad Company, a corporation under the laws of this state, constructed the line of railway now owned and operated by the defendant, and, in building the line of said railway across the said hollow, caused a high embankment to be created, and also dug deep ditches on the upper and lower sides of said embankment, which said embankment completely stopped the flow and passage of the surface water down said hollow, as it was accustomed by nature to flow, and, in time of rains and floods, caused the said water to accumulate in a pond on the upper side said railway track, and also caused a considerable quantity of water to accumulate and gather in the said ditch on the lower side of said railroad track; and the said water so collected remains in said ditches and in the pond formed on the upper side of said embankment for a considerable while after each rain and flood, and it becomes stagnant, and emits nauseous odors and gases, which poison and pollute the air in and around the plaintiff's said dwelling house, and render the same unhealthy and dangerous to live in, and has within the last three years caused annoyance, sickness, pains, and suffering to the plaintiff, and also to the members of his family, and has within that period caused the death of one of plaintiff's children, who was made sick by the offensive and nauseous gases emitted from said stagnant waters. And the plaintiff alleges that the collection and ponding of such waters as aforesaid is a nuisance to him, dangerous to the health of himself and family, and the same ought to be abated." (5) "The plaintiff further alleges that the Blackville, Alston & Newberry Railroad Company, some five or six years ago, changed its name to the Carolina Midland Railroad Company; and, under said last name, the defendant owns and maintains said embankment and ditches across said hollow, and still maintains and continues said nuisance. And the plaintiff further alleges that the said railroad company, when building said road, or at any time since, could have, without much expense, put a culvert under and across said embankment, which would carry off the surface water, and remove said nuisance; but that the said railroad company carelessly and negligently built said embankment so as to cause said nuisance; and that the defendant, although requested to so abate the same, has, unmindful of its duty, and in wanton disregard of the plaintiff's rights and health, failed to do so, and negligently and carelessly still maintains said nuisance, to the damage of this plaintiff in the sum of two thousand dollars."

The first question which will be considered is whether damages caused by the accumulation of surface water are actionable. In 24 Am. & Eng. Enc. Law, 907, it is said: "A great divergence has arisen in the rules adopted in the various states as to the right of the lower proprietor to obstruct the flow of surface water, and to repel it from his premises by means of an embankment or other obstruction. Some states have adopted what is known as the 'civil-law rule,' which subjects the lower estate to the easement or servitude of receiving the flow of the surface water from the upper estate. Other states, again, have adopted what is known as the 'common-law rule,' by virtue of which the lower proprietor may do as he pleases with his land, and may receive, repel, or divert surface water flowing thereon, at his pleasure. In one or two states, again, a modified rule has been adopted, under which each case is to be governed by its circumstances, and the right to obstruct or repel the flow of surface water is to be determined by the reasonableness of the use of the lower estate." The rule of the common law as to surface water is perhaps nowhere more clearly stated than in 24 Am. & Eng. Enc. Law, 917: "Under this rule it is held that the right of the owner of land to occupy and improve it in such a manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water which may accumulate thereon by rains and snows falling on its surface, or flowing on it from the surface of adjoining lots, either to stand in unusual quantities on the adjacent lands, or to pass onto and over it in greater quantities and in other directions than they were accustomed to flow. 'Cujus est solum ejus...