Chick Springs Water Co., Inc. v. State Highway Dept.

• Decision Date: 18 March 1931
• Docket Number: 13095.
• Parties: CHICK SPRINGS WATER CO., Inc., v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

157 S.E. 842

159 S.C. 481

CHICK SPRINGS WATER CO., Inc., v. STATE HIGHWAY DEPARTMENT.

No. 13095.

Supreme Court of South Carolina

March 18, 1931

Appeal from Common Pleas Circuit Court of Greenville County; W. H Townsend, Judge.

Action by the Chick Springs Water Company, Inc., against the State Highway Department. Judgment of dismissal, and plaintiff appeals.

Reversed and remanded.

The complaint and order of the circuit judge, directed to be reported, were as follows:

Complaint.

The complaint of the above-named plaintiff respectfully shows to the court:

I. That plaintiff is, and was at the times hereinafter complained of, a corporation chartered under the laws of the state of South Carolina, having its principal place of business at Chick Springs, S. C.; and, as plaintiff is informed and believes, defendant is a political subdivision of the state of South Carolina, created and established under the laws of said state, and charged with the duties of constructing and maintaining designated highways in the state, one of which is the highway hereinafter mentioned and complained of. That the said state highway department of South Carolina, as such, is liable and subject to a suit for the acts hereinafter complained of.

II. That the plaintiff is now, and was at the times hereinafter stated, the owner of a tract of land situate in Greenville county, state aforesaid, on which is located the very valuable mineral springs known as Chick Springs, the amusement park, known as Chick Springs Amusement Park, and various and sundry devices for recreation and amusement; also a bottling plant, with the machinery and appliances and building used in connection therewith, all of which are owned and operated by the plaintiff herein, except a few which are operated on a concession basis. That the tract of land herein referred to is drained through the middle from west to east by Lick creek, and that said creek, being a natural water course, prior to and at the time hereinafter stated, has always carried and drained the freshet waters of the watershed without damage or detriment to plaintiff's property.

III. That during the year 1925, the defendant, pursuant to statutory authority, relocated and constructed highway No. 8 from the end of the old pavement at Taylors, in Greenville county, to the Spartanburg county line, said work having been done as highway project No. 242. That said highway so constructed traverses the aforesaid tract of land of plaintiff so as to place the particular portion of said tract on which are located the properties and amusements hereinabove referred to on the west side of said highway. That in the construction of said highway through plaintiff's property an embankment of approximately thirty or forty feet in height was thrown up across the valley section of said tract drained by said creek, and a culvert was constructed by the defendant through said embankment for the purpose of carrying off the flow of said creek and the freshet waters carried by said creek from time to time.

IV. That said culvert was negligently constructed by the defendant in that said culvert was not of sufficient dimensions to drain, carry, and discharge the volume of water which could have been anticipated by a study of the country through which the creek runs, by a study of the watershed drained by said creek, and by a study of the volume of water carried by said creek during the freshets which had existed before said culvert was built. That a proper study of said situation would have revealed clearly the fact that the culvert as constructed was not of sufficient dimensions to carry off fresh waters which flowed through said creek from time to time, which fact was known to defendant, or by the exercise of ordinary care could have been ascertained by said defendant at the time said culvert was constructed. That, at the time of the construction of said culvert by defendant as aforesaid, the engineers of the defendant in charge of the job were informed by various parties that said culvert was not of sufficient dimensions to meet the demands it would be subjected to, and protest was made to said engineers against the construction of said culvert according to the size and dimensions which were used in this construction.

V. That on or about the 26th day of September, 1929, there was a heavy rainfall in the immediate section of plaintiff's property and at the watershed on which said property was located, which said rainfall was not unprecedented, there having been much greater rainfalls in said vicinity within recent years, which fact was well known to all the residents in the vicinity. That said culvert, by reason of the negligence of the defendant in failing to make a proper study and investigation of the situation, and by reason of the negligent construction as aforesaid, was inadequate to meet the demands placed upon it by said rainfall, and was of insufficient size and dimensions to carry and drain the waters of said creek at said time, the volume of which could have been anticipated and foreseen by ordinary prudence and diligence on the part of the defendant.

VI. That, by reason of the failure of the defendant to make proper investigation to heed the warning and protests of the residents in the vicinity and to construct a culvert of adequate size and dimensions, the said culvert was not able to meet the demands placed upon it by the rainfall as aforesaid, as a result of which the waters of said creek were dammed and impounded by the said embankment to a depth of twenty feet, more or less, submerging and flooding the entire property of the plaintiff on the west side of said road raising the bed of the creek, and subjecting the adjacent bottoms to overflow, and resulting in their permanent injury. That as a result of said impounded waters and the failure of the defendant to exercise due care, as hereinabove stated the property of plaintiff hereinabove described was seriously and permanently injured and damaged in the following particulars: Sand and mud were deposited all over the premises; the mineral springs were filled with sand and mud; the spring house, refreshment stands, bottling plant, swimming pool, dressing rooms, the dance pavilion and other buildings were greatly and permanently damaged; the bridges in the park were carried away and destroyed; the bottling plant and pump house seriously and permanently injured; the creek was filled with sand and mud; the bed of the creek raised; the adjacent bottoms injured and damaged-- all of which resulted in damage and loss to plaintiff in the sum of $10,000.

VII. Plaintiff is informed and believes, and so alleges, that the acts of the defendant as aforesaid constitute a taking of the private property of the plaintiff by the defendant, a political subdivision of the state, for public purposes, without just compensation being made therefor, and in violation of the provisions of the Constitution of South Carolina and of the Constitution of the United States, which provide that private property shall not be taken for a public use without just compensation being made therefor.

Wherefore, plaintiff demands judgment against the defendant for the sum of $10,000 and for the costs of this action.

Order.

The Court: The above matter came on before me on a motion by the state to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action in the particulars specified in notice served on the 26th of last month. It appears from the allegations of the complaint that it alleges a taking of plaintiff's property by the state acting through the state highway department in September last; and the action asks for compensation to be made by the state highway department for the value of the plaintiff's property so taken.

It has been held in the case of the United States Casualty Company against the State Highway Department of South Carolina that an action brought against the state highway department is in effect actually brought against the state itself; and the only act called to my attention by which the state has given permission to sue the state highway department in the courts is that approved March 10, 1928, published as Act No. 1055 of that year (35 St. at Large, p. 2055). This act requires as a prerequisite and condition to the suit that notice of the claim upon which the suit is to be brought shall be filed with the state highway department within ninety days after the alleged injury. It is not alleged in the complaint that any such claim has been filed with the state highway department, and it is stated on the argument before me that no such claim was filed, for the reason that this action is not based upon the act to which I have referred, but is based upon the constitutional provision (Const. 1895, art. 1, § 17) that private property shall not be taken for public use without compensation being first made therefor.

There was practically the same provision requiring compensation by the state for property taken in the Constitution of 1868 (Const. 1868, art. 1, § 23) which was before the Supreme Court in the case of Lowry v. Thompson, 25 S.C. 416 1 S.E. 141, in which case it was held, in reference to an action for the recovery of property in the possession of the state alleged to have been illegally taken, that, even if the possession of the state was wrongfully acquired by some wrongful act by one of its officers or agents, still no action could be maintained by the rightful owner to recover possession against an officer of the state government holding and claiming the property as the property of the state when sued as such, because in such case the state, being the real party in interest, would be an indispensable party to the action, and,...