Belton v. Wateree Power Co

• Decision Date: 29 December 1922
• Docket Number: (No. 11083.)
• Citation: 115 S.E. 587
• Court: South Carolina Supreme Court
• Parties: BELTON. v. WATEREE POWER CO.

115 S.E. 587

BELTON.

v.WATEREE POWER CO.

(No. 11083.)

Supreme Court of South Carolina.

Dec. 29, 1922.

Gary, C. J., Watts and Fraser, JJ., and Wilson, Cowman, and Mauldin, Circuit Judges, dissenting.

Appeal from Common Pleas Circuit Court of Fairfield County; H. F. Rice, Judge.

Action by George D. Belton against the Wateree Power Company. From a judgment for plaintiff, defendant appeals. Reversed.

A. L. Gaston, of Chester, McDonald & McDonald, of Winusboro, and Osborne, Cocke & Robinson, of Charlotte, for appellant.

Glenn W. Ragsdale and J. W. Hanahan, both of Winnsboro, for respondent.

COTHRAN, J. Action for $2,000 damages on account of injury alleged to have been sustained by the erection of a certain dam across the Wateree or Catawba river at Getty's Shoals. It is alleged that the dam raised the water in the channel of the river and the streams, ditches, drains, and hollows upon the plaintiff's land, throwing it back upon the bottom land, obstructing the natural drainage, and injuring it for agricultural purposes; and that the backwater caused the formation of pools and stagnant water on or near plaintiff's land, providing a breeding place for mosquitoes of the malaria-bearing species, which have caused the tenants upon the place to become sick, thereby creating health conditions which render the land unfit for residential purposes and greatly depreciating its value.

From a judgment in favor of the plaintiff, the defendant has appealed.

There was no evidence at all tending to sustain the allegation of injury to the plaintiff's land by backwater upon his bottoms. He lived about a mile and a half from the pond, and the nearest point on his land was half a mile from the pond. He testified:

"I have some bottom land on all the creeks. There has been no water on it, no more than where you come to these big rains and the creek would overflow. It does not overflow now, not more than when the pond was not there."

So that his case is to be considered with reference only to the allegation that the pond caused stagnant pools which bred malarial mosquitoes, causing sickness, the removal of his tenants, and consequent depreciation of the value of his land.

One of the plaintiff's witnesses testified that he had made a careful investigation and search for the malaria-bearing mosquitoes about plaintiff's premises, found practically none in the pond, but "we went to the spring about 150 yards north of the house, and in this branch we found mosquitoes; the Anopheles (malaria-bearing) mosquitoes breeding in profusion" (Dr. Hamilton). Other witnesses gave testimony tending to show that the pond greatly increased the prevalence of mosquitoes in the immediate locality, and in this discussion that fact may be assumed. That the prevalence of the pest was not confined to the plaintiff's premises, but extended generally to all within a radius of a mile and a half from the pond, is shown by the testimony of the witnesses for the plaintiff: Dave Robertson: "After the dam was closed and the pond put there, there was plenty of chills and fever. It was from house to house"; that he lived 1 1/2 miles from plaintiff and had malaria after the pond was created, though had had none before; that John Belton, a mile away, also had had sickness. Major Bush lived three-quarters of a mile from plaintiff, and had had it under similar circumstances; had heard of several others in the neighborhood being taken sick. A. W. Mathewson: "Knew of other cases of malaria all around down there everywhere"; he lived a mile from the pond, and had chills and fever on his place; never heard of malaria there before the pond was there; that parties living on the highest hills in Fairfield county were having chills, on the Long-town road 2 miles from his house: heard different ones say that they could hardly rest at night for mosquitoes. Dr. Douglass: Had been going down there since 1919 when dam was closed treating malaria. The questions put to Dr. Douglass by the attorneys for the plaintiff indicate their conception of the situation:

"If you had found down on this river, before the pond was put there, that there was very little malaria, and that malaria was only occasional on the river, and after this immense pond was put there you found all the neighborhood had malaria, what would you say caused it? " "If you find a large area of water like they have out here on the Wateree river when that pond is up, malaria is prevalent, everybody in the neighborhood having it one year when the pond is up, the whole region around there is flooded, etc.?"

Dr. Hamilton: "A portion of that section lies along the pond. Its proximity extends as far back as eight miles of the pond on the branches and creeks running in and out of the pond. Malaria was prevalent there last year."

The testimony for the plaintiff thus showing that the activities and effects of the mosquitoes were not confined to the premises of the plaintiff, but were prevalent in that whole community, it has been demonstrated that the damage suffered by the plaintiff was not peculiar to himself. It shows that the nuisance was a public nuisance and not a private nuisance, and the law is well settled that the plaintiff is not entitled to damages for an injury resulting from a public nuisance unless his injury is not only different in degree but different in kind from that suffered by the public generally, or that the nuisance has been caused by the negligent conduct of the defendant.

The following principles have been established beyond controversy:

1. If the act claimed to have been noxious to the plaintiff was authorized by the Legislature, it cannot be considered a public nuisance, and the plaintiff can recover damages only upon the theory that the injury was caused by the negligent exercise of thatlegally authorized act. Wallace v. R. Co., 34 S. C. 62, 12 S. E. 815.

2. If the act claimed to have been noxious to the plaintiff constituted a public nuisance, the plaintiff can recover damages only upon the theory that the injury sustained by him was different not only in degree, but in kind, from that suffered by the public generally.

3. If the act claimed to have been noxious to the plaintiff resulted in an injury peculiar to him, some special inconvenience or discomfort not experienced by the public at large, the defendant cannot invoke the protection of any statute purporting to authorize the act, for it would be in violation of the Constitution, which forbids the taking of private property for public use without just compensation.

The case of Richards v. Washington Terminal Co., 233 U. S. 546, 34 Sup, Ct. 654, 58 L. Ed. 1088, L. R. A. 1915A, 887, is an exceedingly interesting one, and particularly instructive in the present emergency, for the reason that it contains a clear differentiation between items of damage common to the public generally, and those peculiar in kind suffiered by the plaintiff; the complaint claiming damages on account of each. The facts were as follows:

The terminal company owned the tunnel which extends from one side of Washington to the other, passing under the Capitol and the Library grounds. It also owned the double track therein, its ownership of it ceasing at the south portal or mouth of the tunnel. The tunnel and tracks were built upon property acquired by purchase or condemnation proceedings and were constructed under authority of the acts of Congress and of permits issued by the municipal authorities. The plaintiff owned a house a little over 100 feet from the south portal of the tunnel. His action was: (1), For the injury to his premises by the volumes of dense black or gray-smoke, and also by dust and dirt, cinders and gases emitted from the trains while passing over the tracks in and out of the tunnel, or standing upon the tracks near the signal tower. (2) For the injury to his premises by the gases and smoke emitted from locomotive engines while in the tunnel and forced out of it by means of the fanning system through the portal located near to plaintiff's property.

As to the first ground of alleged damage the court held that the plaintiff was not entitled to recover, declaring:

"The acts of Congress referred to, followed by the construction of the tunnel and railroad tracks substantially in the mode prescribed, had the effect of legalizing the construction and operation of the railroad, so that its operation, while properly conducted and regulated, cannot be deemed to be a public nuisance. * * * Railroads constructed and operated for the public use, although with private capital and for private gain, are not subject to actions in behalf of neighboring property owners for the ordinary damages attributable to the operation of the railroad, in the absence of negligence. Such roads are treated as public highways, and the proprietors as public servants, with the exemption normally enjoyed by such servants from liability to private suit, so far as concerns the incidental damages accruing to owners of nonadjacent land through the proper and skillful management and operation of the railways. Any diminution of the value of property not directly invaded nor peculiarly affected, but sharing in the common burden of incidental damages arising from the legalized nuisance, is held not to be a 'taking' within the constitutional provision. The immunity is limited to such damages as naturally and unavoidably result from the proper conduct of the road, and are shared generally by property owners whose lands lie within range of the inconveniences necessarily incident to proximity to a railroad. It includes the noises and vibrations incident to the running of trains, the necessary emission of smoke and sparks from the locomotives, and similar annoyances inseparable from the normal and nonnegligent operation of a railroad. * * * That the constitutional inhibition against the taking of private property for public use without compensation does not confer a right to compensation upon a landowner no...