Cain v. South Bound R. Co.

• Citation: 39 S.E. 792,62 S.C. 25
• Parties: CAIN v. SOUTH BOUND R. CO.
• Decision Date: 03 October 1901
• Court: South Carolina Supreme Court

39 S.E. 792

62 S.C. 25

CAIN v. SOUTH BOUND R. CO.

Supreme Court of South Carolina

October 3, 1901

Appeal from common pleas circuit court of Bamberg county; Watts Judge.

Action by A. C. Cain against the South Bound Railroad Company. From an order sustaining demurrer of defendant, plaintiff appeals. Reversed.

J. P Matheney, Howell Gruber, and A. M. Bostick, for appellant.

C. J C. Hutson and Laurie T. Izlar, for respondent.

JONES J.

This appeal is from an order sustaining a demurrer to the complaint, said demurrer being based on the ground that the complaint does not state facts sufficient to constitute a cause of action, in that the sole damages claimed by the plaintiff are alleged to have occurred by the flowing of surface water on the lands of the plaintiff by the defendant in turning it off its right of way for the purpose of protecting and preserving its roadbed. The complaint is as follows (after alleging the incorporation of the defendant company and the ownership by plaintiff of the land described): "(3) That a short distance south of plaintiff's said land, and before entering said land from the Savannah side, the aforesaid railroad of defendant traverses a natural depression in the adjoining lands wherein the surface waters from the adjoining lands of other owners were from time immemorial wont to accumulate, making a natural pond or reserve of water during and after the seasons of considerable rainfall, which said accumulation of surface water had always been accustomed, before the construction of defendant's said railroad, to waste away and disappear from absorption and evaporation, there being no outlet therefor, without coming upon or in any wise affecting plaintiff's said land. (4) That the construction of defendant's said railroad through said depression has since caused the accumulation of waters therein to follow the grade of said railroad, and flow along the drain constructed by defendant along the west side thereof where it intersects the aforesaid land of plaintiff, being confined within the said drain on the west side of said railroad by the natural conformation of the land on the one hand and by the bed of defendant's said railroad on the other, whereby it was prevented from crossing on the lands of plaintiff on the east side of said railroad. (5) That at a point where said railroad crosses a considerable and fertile field of plaintiff on his said land accustomed for many...