Baynham v. State Highway Dept. of South Carolina

• Decision Date: 27 August 1936
• Docket Number: 14347.
• Parties: BAYNHAM v. STATE HIGHWAY DEPARTMENT OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

187 S.E. 528

181 S.C. 435

BAYNHAM v. STATE HIGHWAY DEPARTMENT OF SOUTH CAROLINA.

No. 14347.

Supreme Court of South Carolina

August 27, 1936

Appeal from Common Pleas Circuit Court of Aiken County; S.W. G Shipp, Judge.

Action by Mark Baynham, doing business under the trade-name and style of the South Carolina Pottery, against the State Highway Department of South Carolina. Judgment for plaintiff and defendant appeals.

Affirmed.

John M Daniel, Atty. Gen., J. Ivey Humphrey and M. J. Hough, Asst. Attys. Gen., F. L. Willcox, of Florence, and John E. Stansfield, of Aiken, for appellant.

J. Nelson Frierson of Columbia, and Williams & Busbee, of Aiken, for respondent.

STABLER Chief Justice.

This is an action for damages. The complaint alleged, among other things, that the defendant is authorized by statute to construct and to keep in repair certain highways of the state, among them No. 1, extending from Aiken to Augusta, and No. 25, leading through North Augusta to and across the Savannah river; that the plaintiff, during or prior to 1914, established a pottery manufacturing plant (a two-story brick building) upon the lowlands lying between the river and the higher lands upon which North Augusta is located, the products being manufactured from clay dug from pits located on Baynham's premises near the plant; that in 1927 the plaintiff also erected, near the same point, a brick gasoline filling station and an auto repair shop, all of these buildings being southeast of and adjacent to highway No. 25 and about a mile northwest from highway No. 1; and that the lowlands upon which the plant, filling station, and pits were located, had been subject, during the years that plaintiff owned the property, to occasional overflows from the waters of the Savannah river, after they had risen to approximately a 33-foot level at the city of Augusta. It was also alleged that in 1928 the defendant reconstructed that part of Highway No. 1 which passes through the lowlands, by filling in and placing on top of it a solid embankment, many feet higher than the level of the original roadbed, without providing sufficient openings or sluiceways through which the flood waters might pass; and that thereafter, in August of the same year, a flood occurred in the Savannah, which caused its waters to reach the stage of approximately 40.4 feet at the city of Augusta, inundating defendant's manufacturing plant and filling station and otherwise doing damage to his property.

It was further alleged that the roadbed of No. 25, prior to August, 1929, was only slightly elevated above the level of the lowlands through which it passed, and that the overflow flood waters of the river "had theretofore been accustomed to cut a channel or pathway across and through said low-lying roadway as it then existed * * * at a point about half way between the plaintiff's pottery manufacturing plant, on the one side, and the North Augusta heights on the other side"; but that the defendant, in the summer of 1929, began the reconstruction of this highway and raised it for a distance of seven or eight hundred feet, at approximately a 6 per cent. grade from near the pottery plant to where it crossed over the tracks of the Georgia-Florida Railroad Company, to a height at the crossing of about 30 feet above the general level of the roadbed, the fill being constructed as a solid embankment without any open trestle work or sluiceways through which the flood waters of the Savannah might pass; that the channel or pathway was thereby narrowed, the elevation of the flood waters caused to be raised and their velocity increased, and the overflow waters thereby deflected from their normal course; that the defendant knew, or should have known, of the effect of the changes resorted to in the construction of the highways named, and in the performance of the work was negligent, such negligence resulting in damage to plaintiff's property which otherwise would not have occurred; that subsequent to the reconstruction and repair of the roadbed of No. 25, namely, in September and October of 1929, there was another flood in the Savannah river, the waters reaching the high stage of over 45 feet at Augusta; that the manufacturing plant and premises of the plaintiff, as a result of the increased height, velocity, and deflected current of the flood waters, caused and occasioned by the conduct of the defendant in the building and maintaining a solid embankment or dam on Highway 25, were inundated and all of his property named and described were destroyed; and "that the acts of the defendant, as above set forth, constituted a taking of the above described private property of the plaintiff by the defendant, a political subdivision of the State of South Carolina, for public uses and purposes, without just compensation being made therefor; and deprived the plaintiff of his said property without due process of law; in violation of the provisions of the Constitution of South Carolina (article 1, § 5 and section 17) and of the Constitution of the United States (amendment 14, § 1), which provide that private property shall not be taken for a public use without just compensation being made therefor, and that no State shall deprive any person of his property without due process of law."

The defendant, answering the complaint, admitted that the lowlands along the Savannah river had been subject to overflow by flood waters when the river was up. It also admitted that it was charged with the duty of building and of keeping in repair the two highways named, but specifically denied that it had been negligent in their construction as alleged. We quote as follows: "That this defendant admits that during the years 1928 and 1929, this defendant began the construction and has made considerable improvement on said highways, and admits that since the commencement of said work there have been unusual floods in the Savannah River caused by the unusual and excessive amount of rainfall, so much so that the Savannah River overflowed its banks and did great damage to adjacent property all along the said river, and caused great damage to the highways and bridges over and along the said river; that flood waters damaged the highways and bridges in the State Highway System to the extent of many millions of dollars, but this defendant specifically denies that it has at any time caused any flood in the Savannah River or elsewhere, or contributed thereto, and, to the contrary, the defendant alleges that the said floods were caused by the unusual amount of rainfall, causing numerous streams to overflow their banks, and especially the Savannah River, all of which is and was well known to the plaintiff herein, and any damage which may have been sustained by this plaintiff was due to his own negligence in not building and constructing his plants so as to withstand said floods without injury; and to the great amount of rainfall, which was an act of God, and the unusual flood waters caused thereby, and by other things over which this defendant had no power or control, and this defendant specifically denies that it has, by the construction of said highways, or that the said highways have caused the floods, or in any way damaged the plaintiff's property, or taken any part thereof, and if there were any negligence on the part of any person which contributed to the damage which plaintiff alleges he has sustained, it was plaintiff's own negligence in building his plant, filling station and repair shop in the low lands, knowing that the same were subject to be overflowed, without properly providing for such floods and high water."

On trial of the case, the jury found for the plaintiff $15,000, after motions for a nonsuit and for a directed verdict, duly made, had been refused by the court. Later, a new trial was also denied, and from judgment entered this appeal is taken.

There are twenty-nine exceptions, with numerous subdivisions; but it is agreed that the issues presented are comparatively few. In fact, while counsel for appellant submit and argue eight propositions, we think, adopting in the main their statement, that answers to the following questions will dispose of the appeal: (1) Did the trial judge commit error in refusing to direct a verdict for the defendant on the ground that there was a total absence of proof of such taking of private property for a public use, within the purview of the constitutional provision, as to entitle the plaintiff to compensation? (2) Did he err in his charge to the jury? (3) In admitting certain testimony? (4) In refusing to grant a new trial on the ground that the verdict was excessive?

First. The law applicable to the question here involved is well settled in this jurisdiction. We do not deem it necessary, therefore, to restate it or to discuss it at length. See Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842, 850, and the many authorities cited. The following from 10 R.C.L. p. 70, was there quoted with approval; it being pointed out that our own cases had been decided upon the principle stated: "Covering Land with Water or Earth.-There may be a taking of property in the constitutional sense although there has been no actual entry within its bounds and no artificial structure has been erected upon it. When a public agency acting under authority of statute uses land which it has lawfully acquired for public purposes in such a way that neighboring real estate, belonging to a private owner, is actually invaded by superinduced additions of water, earth, sand or other material so as effectually to destroy or impair its usefulness, there is a taking within the meaning of the constitution."

The court also held, following its former decisions, that the provision of the...