Cannon v. Atlantic Coast Line R. Co.

• Citation: 81 S.E. 476,97 S.C. 233
• Parties: CANNON v. ATLANTIC COAST LINE R. CO.
• Decision Date: 22 April 1914
• Court: South Carolina Supreme Court

81 S.E. 476

97 S.C. 233

CANNON v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

April 22, 1914

Appeal from Common Pleas Circuit Court of Charleston County; I. W Bowman, Judge.

"To be officially reported."

Action by F. S. Cannon against the Atlantic Coast Line Railroad Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed, with leave to plaintiff to apply for permission to amend his complaint.

Paragraphs 3 and 4 of the complaint are as follows:

"(3) That heretofore, in the year 1912, the plaintiff had in cultivation a crop of cabbage containing about 25 acres, near Meggetts, upon which he had planted cabbage, for sale as aforesaid, and that such plantation upon which said cabbage was planted was rented or leased by him for that purpose, and that said land, upon which said cabbage was planted as aforesaid, adjoins the right of way of the defendant company, and at which point it has an embankment constructed; and the plaintiff alleges that during the spring of 1912 he was so engaged in raising a crop of cabbage on said plantation, and that the defendant, by backing the water on said cabbage, caused the same to be injured, damaged, and ruined by reason thereof, so that he received no yield from the said crop, in that the defendant had a trunk under its railroad track to carry off the water from said plantation and the surrounding territory, which was drained by means of ditches, and that said water passed through said trunk, and the plaintiff alleges that said trunk was ever since its construction insufficient to carry off the volume of water at the point where the plaintiff was planting, and that, in consequence of such defective and insufficient trunk, the water was caused to be backed and thrown upon the land upon which the plaintiff planted said crop of cabbage.

(4) That for more than 20 years the ditches as aforesaid were used to drain the lands and to carry off the water of the surrounding territory, including the place upon which the plaintiff planted his cabbage, and was so in use before the said railroad was constructed, and that when the defendant built its railroad, it constructed a trunk in order not to stop the flow of water through said ditches which had been used for a long time for the purpose of draining the land in that vicinity; but the plaintiff alleges that said trunk was insufficient for the purpose, and, in consequence thereof, the natural flow of the water was obstructed to such an extent that the same was backed and thrown upon the said lands, so occupied by the plaintiff, whereby the said cabbage crop was injured and ruined as aforesaid. That the said defendant negligently and carelessly constructed an insufficient trunk at the time of the building of the said road, and has continued since that time negligently and carelessly to allow an insufficient trunk to remain for the purpose of carrying off the water conducted through said ditches into said trunk, and that the defendant recognized the necessity of constructing said trunk, and knew or should have known that the same was defective or insufficient to convey and carry off the water for the purpose of draining the lands in the vicinity of its railroad at the point above mentioned."

The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that:

(1) The only inference to be drawn from the facts alleged in the complaint is that the water alleged to have been backed upon plaintiff's land was surface water, the obstruction of the flow of which defendant had a right to protect itself against, and which could form the basis for no cause of action.

(2) Because surface water is regarded as a common enemy which each one may keep off his own premises even though by so doing it is thrown or kept on the land of another.

Because there is no allegation that a stream or water course has been obstructed by de...