Clemson University v. First Provident Corp.

• Decision Date: 12 July 1973
• Docket Number: No. 19659,19659
• Citation: 197 S.E.2d 914,260 S.C. 640
• Court: South Carolina Supreme Court
• Parties: CLEMSON UNIVERSITY, Respondent, v. FIRST PROVIDENT CORPORATION et al., Appellants. William B. DOUGLAS, Respondent, v. FIRST PROVIDENT CORPORATION OF SOUTH CAROLINA et al., Appellants.

Page 914

197 S.E.2d 914

260 S.C. 640

CLEMSON UNIVERSITY, Respondent, v. FIRST PROVIDENT CORPORATION et al., Appellants.

William B. DOUGLAS, Respondent, v. FIRST PROVIDENT CORPORATION OF SOUTH CAROLINA et al., Appellants.

No. 19659.

Supreme Court of South Carolina.

July 12, 1973.

T. Kenneth Summerford, Florence, for appellants.

Russell W. Templeton, Columbia, amicus curiae.

Willcox, Hardee, Palmer, O'Farrell, McLeod & Buyck, R. M. DeBerry, Yarborough, Parrott & Anderson, McGowan, Nettles, Keller & Eaton, and E. N. Zeigler, Florence, for respondents.

MOSS, Chief Justice:

Clemson University and William B. Douglas, the respondents herein, each instituted an action against First Provident Corporation of South Carolina and others, the appellants herein, seeking a temporary and permanent injunction for an alleged trespass committed by them. The question of the issuance of a temporary injunction was heard before The Honorable W. L. Rhodes, Presiding Judge of the Court of Common Pleas, and an order was issued by him granting the injunction, Pendente lite, pending a hearing on the merits. Thereafter, a consent order was issued consolidating and transferring the pending actions to the Civil Court of Florence for a determination of all issues involved. The respondents, in their complaints, allege that each is the owner of a tract of land in Florence County situate northwest of the City of Florence and that First Provident Corporation, hereinafter referred to as the appellant, owns a tract of land located in the vicinity of lands of the respondents. It is then alleged that the appellant, through its agents, servants and employees, did enter upon the lands of the respondents, without their consent, and commenced the construction of a drainage canal across and through their lands bringing thereon for said purpose a dragline, bulldozer, trucks and other tools and equipment and did proceed to clear a thirty to forty foot right of way. It is further alleged that the appellant intends to construct such canal as a drainage for its real estate development. The respondents further allege that unless the appellant is enjoined they will suffer further irreparable damage.

The appellants, by their answers, sought to establish their right to construct the drainage canal alleging (1) a right of way for a ditch or water way pursuant to Sections 18--51 through 18--58 of the 1962 Code, (2) an easement by prescription, and (3) an easement by implication and a right of way by necessity.

This case came on for trial before The Honorable W. T. McGowan, Jr., Judge of the Civil Court of Florence. After the taking of the testimony and the receipt of several exhibits as evidence, he issued his order enjoining and restraining the appellant from clearing any right of way and constructing, digging or extending any drainage ditch, and from committing any trespass upon the property of the respondents provided, however, that the appellant:

'shall have leave to apply to this Court for modification of this order to permit them to clean the ditches upon the lands of said plaintiffs to the depth and to the width they existed at the time of their deepest depth and width at any time from their original construction, upon a showing that such will be practicable and not violate the rights of any other parties.'

It appears that the appellant has been developing its property as a residential development known as Carver Place Annex. The streets were laid out and a number of residences were constructed in the subdivision. These residences have not been sold because the drainage facilities for surface water out of the subdivision were inadequate to meet the standards of various lending institutions which would provide the financing for the purchase thereof.

It appears that before the development of the subdivision was begun, the surface water drainage therefrom flowed into a ditch which ran through the subdivision in a general westerly direction crossing property belonging to one Ingram and then across the property of William B. Douglas and others, and finally into Beaver Dam Creek. Intersecting the abovementioned ditch there is one running in a northerly direction on the boundary between the lands of Douglas and Clemson University where it reaches a canal which empties into what is designated as McCall Branch and such ultimately empties into High Hill Creek.

It appears that prior to September, 1971, the appellant had negotiated with various owners of the property along the ditches in question for a right of way to enlarge the ditch and construct one that would be sufficient to provide adequate drainage from Carver Place Annex. The appellant was not successful in obtaining such rights of way from the respondents, but nevertheless began clearing a right of way and commenced digging a ditch or canal along the existing ditches.

There is no question from the record that it was the intention of the appellants to materially increase and enlarge the drainage ditches by making them wider and deeper. The record shows, even though there is some conflict in the testimony, that the north-south ditch running to High Hill Creek is about two feet wide and with an average depth of over three feet. The testimony further shows that the new ditch or canal would have a minimum width of eight feet and a depth of four to five feet. The east-west ditch was described as being about four feet wide and a depth varying from one foot to some four or five feet. The proposed new ditch or canal was described as being from seventeen to twenty feet in width but the depth thereof is not definitely given. There is testimony that in order to dig ditches of the size contemplated, a right of was approximately thirty or forty feet would be necessary to accommodate the machinery and equipment for this purpose. It is admitted that such right of way over portions of the lands of the respondents was cleared to this extent and for a distance of 500 to 600 feet.

After the commencement of these actions, the appellant served notice that it would invoke Sections 18--51 through 18--58 of the Code of Laws which gives land owners the right to open waterways for drainage across the lands of others.

It provided in Section 18--51 as follows:

'Any person owning lands which can only be properly drained through or over lands of other persons through or over which there is no right of way, sufficient waterway or ditch cut may, as hereinafter provided, enter, construct and cut a waterway or ditch through and over such lands to the nearest waterway, ditch, stream, or outlet then existing.'

It is not necessary to quote the remaining sections referred to as they are procedural in nature.

The trial judge held that Sections 18--51 through 18--58 of the Code, were unconstitutional, being violative of Article I, Section 17, of the 1895 Constitution of this State, which provides:

'Private property shall not be taken for private use without the consent of the owner, not for public use without just compensation being first made therefor.'

The first questions involved is whether or not the trial judge was in error in declaring the aforesaid sections of the Code unconstitutional.

The provisions of Sections 18--51 through 18--58 were fashioned after and contained provisions of similar import to an Act, approved by the General Assembly of this State, on February 15, 1872, 'to provide the manner for obtaining the right-of-way, where lands are surrounded by other lands.' 15 Stats. 42. This Act was held constitutional pursuant to the provisions of Article I, Section 23 of the 1868 Constitution of this State. State v. Stackhouse, 14 S.C. 417. However, after the adoption of our 1895 Constitution, the aforesaid Act was held unconstitutional under Article I, Section 17 thereof. Beaudrot v. Murphy, 53 S.C. 118, 30 S.E. 825. The rationale of this decision is here applicable.

It follows that the attempted taking involved in these cases is for private use and is prohibited under Article I, Section 17 of the Constitution. Young v. Wiggins, 240 S.C. 426, 126 S.E.2d 360.

The trial judge found that First Provident Corporation, the owner of Carver Place Annex, had an easement by prescription with respect to the ditches leading from its property to Beaver Dam Creek and High Hill Creek, both ditches having been in existence for many years. The respondents have not appealed from this finding. The appellants assert that the court was in error, after finding an easement by rescription in favor of First Provident Corporation, to then enjoin its agents, sevants or employees from entering the lands of the respondents for the purpose of cleaning or repairing the ditches.

There can be no question that an easement of drainage through a ditch or across the lands of another may be acquired by prescription. In such case, the owner of land over which a prescriptive right has been acquired cannot prevent drainage through his land to the extent of the right acquired by prescription. The rule set forth in 93 C.J.S. Waters § 121, at page 823, is applicable. We quote the following therefrom:

'* * * Thus, while the lower owner has no right to obstruct the flow of surface water where a prescriptive right of drainage has been acquired, such an easement gives no right to enlarge or vary the servitude beyond the conditions under which it has been exercised during the prescriptive period, although the upper owner has a right to clean the ditch. * * *'

In 25 Am.Jur.2d, Easements and Licenses, Section 72, at page 478, we find the following:

'The rights of...