Chick Springs Water Co. v. State Highway Department

• Decision Date: 07 December 1935
• Docket Number: 14186.
• Citation: Chick Springs Water Co. v. State Highway Department, 178 S.C. 415, 183 S.E. 27 (S.C. 1935)
• Parties: CHICK SPRINGS WATER CO. v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

183 S.E. 27

178 S.C. 415

CHICK SPRINGS WATER CO. v. STATE HIGHWAY DEPARTMENT.

No. 14186.

Supreme Court of South Carolina

December 7, 1935

Appeal from Common Pleas Circuit Court of Greenville County; C. C Featherstone, Judge.

Action by the Chick Springs Water Company against the State Highway Department. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

STABLER C.J., dissenting.

The order of Judge Featherstone is as follows:

Prior to April, 1930, the plaintiff above named brought against the defendant above named an action for damages.

Judge Townsend dismissed the action on the ground that it was one in tort against the state, which would not lie.

On appeal (159 S.C. 481, 157 S.E. 842) his ruling was reversed the Supreme Court holding that the allegations of the complaint made out a case of the taking of property, without compensation.

The case was tried and resulted in a verdict for defendant by the jury.

This will hereafter be spoken of as the first action.

Thereafter the plaintiff gave defendant written notice to abate the nuisance. Nothing was done by the defendant; whereupon this action, hereinafter spoken of as the second action, was brought to recover damages for maintaining a nuisance.

The defendant demurred to the complaint on the ground that the allegations showed that the matter was res adjudicata, and therefore a second action could not be maintained.

On the argument counsel for plaintiff frankly stated that they purposely drew the complaint so as to invite a demurrer with the view that the right to maintain the action might be determined upon the pleadings. It was agreed by counsel that, for the purpose of testing the matter, the court should consider the complaint as it is set out in the first action. It was further agreed that the right of the defendant (a matter of practice) to thus raise the question of res adjudicata should be waived.

At the conclusion of the oral argument, my impression was that the demurrer would have to be sustained, but at the earnest insistence of counsel I took the matter under advisement and allowed counsel to file written arguments.

I have given the case such consideration as time has permitted, with the result that my first impression remains.

A decision of the question makes it necessary to get a clear understanding of the character and purpose of the first action. It was to recover damages for the negligent construction of a certain culvert in the relocation of the highway between Greenville and Spartanburg. The plaintiff alleged permanent injury to his land, and sought to recover $10,000 damages therefor. The action was against the state highway department, which built the road under authority given by the General Assembly. The alleged defective culvert and the change in the location of the road constituted permanent work.

The plaintiff did not seek, in this action, to abate the nuisance, as he might have done, in which case he might, if the complaint had been properly framed, have recovered damages up to the commencement of the action, and then had equity to abate the nuisance by proper injunctive process.

Bearing in mind the scope and purpose of this action, namely, that plaintiff sought to recover permanent damage to his land, that the action was for the negligent erection (not the operation) of a permanent structure, and that the alleged nuisance was nonabatable, or that he did not seek to abate it, I think we are in a position to hold that successive actions are not maintainable, and that the demurrer will have to be sustained, and so say the authorities, as I read them.

In 34 C.J. 835, we find the following: "The rule forbidding the splitting of entire claims founded on tort finds frequent application where a trespass or nuisance is of a permanent character, or is so treated by the parties that the injury resulting from it is complete and final; in such case a single recovery may and must be had for the whole damage resulting from the tort, and no second action will lie." And the author cites scores of authorities.

The holding in Harper v. Town of Lenoir, 152 N.C. 723, 68 S.E. 228, is as follows: "The injury to abutting property from negligence of the municipal corporation in making a change of street grade being of a permanent nature, but one recovery is permissible, measured by the impaired market value of the property arising, and likely to arise, from the negligence."

Again: "Although damages resulting from the occasional flooding of land by reason of an insufficient culvert on the land of an adjacent owner are not original, if the claim for damages be made and the action tried on the theory that they are original, the parties will be bound thereby." Harvey v. Mason City & Fort Dodge R. Co., 129 Iowa, 465, 105 N.W. 958, 3 L.R.A. (N.S.) 973, 113 Am.St.Rep. 483.

Of course, where recovery is not sought for permanent injury, where the nuisance does not consist of a permanent structure, and where it can be abated, successive actions may be brought. 34 C.J. 842, 843.

I think a proper understanding of the principles announced in the Conestee Case necessitates sustaining the demurrer.

In considering that case we must bear in mind:

(1) That the court was dealing with an action founded upon the negligent operation of a sewer system-not with an action for damages for the improper construction of the system.

Practically all of the cases cited by the court deal with alleged wrongs in the improper handling of sewage. See Conestee Mills v. City of Greenville, 152 S.C. 153, 149 S.E. 595.

To quote from the opinion of Mr. Justice Stabler (Conestee Mills v. City of Greenville, 160 S.C. 10, page 13, 158 S.E. 113, 114, 75 A.L.R. 519): "The amended complaint alleges, inter alia, that by reason of the discharge of the untreated sewage into the river the water has become putrid and the air contaminated."

Again: "That these acts of the defendant were and are grossly negligent, creating a nuisance by which plaintiff has been deprived of the use of the water in pure and uncontaminated condition."

(2) That no actual physical invasion of plaintiff's property was charged.

To quote again from the Conestee Case:

"And the cause of action is, therefore, one for continuing nuisance or tort rather than for continuing trespass. * * *

The gravamen of the complaint is the injury as distinguished from the cause of the injury."

What does the case then hold?

(1) That in successive action for successive injuries the test is whether nuisance is legally abatable.

(2) Successive injuries from negligent operation of lawful enterprise give rise to successive right of action. This is so on theory that, while enterprise itself is not abatable, negligent manner of operating it is illegal and abatable.

Again, 160 S.C. 10, at page 19, 158 S.E. 113, 116, 75 A.L.R. 519, in the Conestee Case, Mr. Associate Justice Stabler says: "The action in the instant case is grounded, not upon the construction of the sewerage system, which was authorized by act of the Legislature, but upon the negligence of defendant in the operation of that system-for which a cause of action clearly lies." Wallace v. Columbia & G. R. Co., 34 S.C. 62, 12 S.E. 815; Belton v. Wateree Power Co., 123 S.C. 291, 115 S.E. 587.

In 46 C.J. 802, we find the following: "In conformity to general rules elsewhere discussed in this work, the rule is that where a nuisance is of such a permanent character that a single recovery can be had, including the whole damage, past and future resulting therefrom, there can be but one recovery." And this is in accord with the holding in the Conestee Case.

Again, where the plaintiff actually seeks to recover all damages, past, present, and future, he is bound by his election and cannot have another action. 46 C.J. 803.

Applying the test of the Conestee Case, viz., that permanent means nonabatable, there can be no doubt that the nuisance complained of by plaintiff in his first action was of that character.

The highway was relocated and constructed under an act of the Legislature. See Law v. City of Spartanburg, 148 S.C. 229, 235, 146 S.E. 12.

Again, quoting from 34 C.J. 846: "The general rule as to the effect of a former judgment recovered by plaintiff in one of a series for installments or successive actions on a continuing or recurring cause, also applies where judgment is rendered for defendant, and hence a successful defense to one of a series of actions founded on the same transaction or subject matter, will operate as a complete estoppel in any subsequent actions of the series if it involved the whole title or went to the whole merits of the underlying transactions." And the same rule applies to actions for tort. 34 C.J. 846.

Applying that rule, we find: That plaintiff in the first action complained of the defective culvert or waterway, and the jury found that there were no defects, no negligence.

Now in the instant action he complained of the same culvert, the same negligent construction. Nothing new has been done by the defendant; the plaintiff only alleged additional damage from the culvert which the jury found was not negligently constructed.

So therefore I conclude that the demurrer is well taken, and it is now ordered and adjudged that such demurrer be, and the same hereby is, sustained, and the complaint is hereby dismissed.

W. A. Bull and W. B. McGowan, both of Greenville, for appellant.

John M. Daniel, Atty. Gen., J. Ivey Humphrey and M. J. Hough, Asst. Atty. Gen., and W. C. Wolfe, of Orangeburg, for respondent.

BONHAM Justice.

There is but one question involved in this appeal, which is from an order of Judge Featherstone's sustaining a demurrer to the complaint on the ground that the action is...