Conestee Mills v. City of Greenville

• Decision Date: 08 April 1931
• Docket Number: 13110.
• Citation: 158 S.E. 113,160 S.C. 10
• Parties: CONESTEE MILLS v. CITY OF GREENVILLE.
• Court: South Carolina Supreme Court

158 S.E. 113

160 S.C. 10

CONESTEE MILLS v. CITY OF GREENVILLE.

No. 13110.

Supreme Court of South Carolina

April 8, 1931

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

Suit by the Conestee Mills against the City of Greenville. From a decree dismissing the complaint, plaintiff appeals.

Reversed and remanded.

W. G Sirrine and B. F. Martin, both of Greenville, for appellant.

B. A Morgan and Haynsworth & Haynsworth, all of Greenville, for respondent.

STABLER J.

This case has already been before us. 152 S.C. 153, 149 S.E. 595. The action was commenced on the 25th day of August, 1925, and is based upon the pollution of the waters of the Reedy river by the city of Greenville through discharge of raw sewage into that river. In 1891 the Legislature passed an act (20 Stat. 1370) authorizing the city of Greenville to establish and maintain a sewerage system; and in 1892 or 1893 the city established a system for discharge of its sewage into Reedy river, and continued such discharge up until the commencement of this action, the amount and the injurious effects of the sewage increasing greatly with the rapid growth of the city.

Plaintiff is a domestic corporation engaged in the manufacture of cotton goods, ginning cotton, farming, merchandising, etc., with its principal place of business at the village of Conestee, on the Reedy river about seven miles below the city of Greenville. It owns at and around that point about seven hundred acres of land, which includes a dam with a pond of about one hundred acres, its places of business, and the village in which live its three hundred employees and their families. This land was owned by Reedy River Manufacturing Company from 1892 to 1909, when it was purchased by the plaintiff, the dam and pond having been maintained by its predecessors in title for many years prior thereto.

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; that the sewage is deposited along the banks of the pond and spreads over the entire area thereof on plaintiff's land; that the fish in the pond have been killed; that the odors and vapors from the river have become so foul and offensive as to cause the most unwholesome conditions and the greatest annoyance and discomfort; that defendant's method of disposing of sewage is antiquated and dangerous, and that it has negligently and willfully failed and refused to properly treat and purify the sewage with adequate modern septic tanks, whereby the noxious and poisonous qualities may be eliminated or greatly reduced; 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, its real estate has been damaged, and its property rights have been otherwise injured. Damages in the sum of $100,000 are sought.

As defenses the city set up, inter alia: Legislative authorization for the system; prescription; that plaintiff acquired the land in question burdened with the pollution; and the statute of limitations.

On January 22, 1930, Judge W. H. Townsend passed an order transferring the case to calendar 2 and referring it to the master to take testimony and report the same, "except as to the amount of compensation, if any, due to plaintiff for taking of property mentioned in the complaint, such issue being reserved for further consideration." Testimony was taken and reported, and thereupon Judge Townsend, on May 29, 1930, passed a decree (1) holding that by the construction of the sewerage system the defendant became liable to compensate lower riparian proprietors for any resulting injury to their lands; that the system was intended to be permanent and was so treated and used up to the commencement of this action; that injury to the lands occurred as early as 1900, the then owner, Reedy River Manufacturing Company, having at that time a right of action to recover compensation for all damages which would naturally flow from the use of the river as a sewer; and that the "taking" of the property occurred before it was acquired by the plaintiff, which took it as purchaser in its injured condition; and (2) dismissing the complaint on the grounds that, more than twenty years having elapsed before the commencement of the action and since the "taking" of the lands, it must be presumed that compensation was made therefor--in effect, sustaining the defense of prescription; that, the land having been "taken" by the city before its purchase by the plaintiff, the latter cannot recover compensation; and that the action is barred by the statute of limitations. From this order plaintiff appeals.

As to prescription:

No actual physical invasion of plaintiff's property is charged, and the cause of action is, therefore, one for continuing nuisance or tort rather than for continuing trespass. In such case, the injury can be abated by the defendant without entry on plaintiff's land, the gravamen of the complaint is the injury as distinguished from the cause of the injury, and the first cause of action arises when the first injury occurs and not when the cause is created. Consequently, the prescriptive period could not commence to run, in any event, until the first injury occurred.

In Williams v. Mining Co., 85 S.C. 1, 66 S.E. 117, 118, 1057, the court said: "To acquire an easement by prescription it must have been used in substantially the same way for the full period of 20 years and adversely to the rights of the owner. The time does not begin to run until there is some injury done which would support an action."

And in McDaniel v. Power Co., 95 S.C. 268, 78 S.E. 980, 981, 6 A. L. R. 1321: "It may be that when a dam is first built that it will not injuriously affect land some distance from it, and for a long time there will be no cause for them to complain, but when the pond, made by the dam, fills with mud, sand, trash, and other things, causes overflows and injury to lands, then the parties injured have a cause of action, if the building and maintenance of the dam is the direct and proximate cause of their injury. *** When the dam in question was erected, the waters from the pond in no manner affected appellant's land. She was at that time in no manner affected, and could not foresee that later she would suffer damage, and for that reason could not demand compensation for she then suffered no injury, and any claim made would have been conjectural and speculative on her part; but when she suffered injury from the erection and operation of the dam in question, then, and not until then, did a cause of action accrue to her, and not until then was she in a position to maintain an action. Any action brought by her until her rights were injuriously affected, or her rights invaded, would have been premature, and she would have had no status in court." See, also, Valparaiso Water Co. v. Dickover, 17 Ind.App. 233, 46 N.E. 591; Sullens v. R. Co., 74 Iowa, 659, 38 N.W. 545, 7 Am. St. Rep. 501; Harvey v. R. Co., 129 Iowa, 465, 105 N.W. 958, 3 L. R. A. (N. S.) 973, 113 Am. St. Rep. 483; Illinois Cent. Co. v. Taylor, 89 S.W. 121, 28 Ky. Law Rep. 139; Black v. Hankins, 6 Ala. App. 512, 60 So. 441; King v. Tiffany, 9 Conn. 162; Thornton v. Turner, 11 Minn. 336 (Gil. 237); Hocutt v. R. Co., 124 N.C. 214, 32 S.E. 681; Atchison, T. & S. F. R. Co. v. Eldridge, 41 Okl. 463, 139 P. 254; Sanders v. Miller, 52 Tex.Civ.App. 372, 113 S.W. 996; Middelkamp v. Bessemer Irrigating Co., 46 Colo. 102, 103 P. 280, 23 L. R. A. (N. S.) 795; Daneri v. R. Co., 122 Cal. 507, 55 P. 243; Norfolk & W. R. Co. v. Allen, 118 Va. 428, 87 S.E. 558, 559; and numerous other cases.

In the Allen Case, supra, the court said: "It is well settled that, when a permanent structure is unlawful in and of itself, irrespective of any damages which flow from it, a cause of action accrues at once upon the erection of the unlawful structure, and the plaintiff may recover once for all; but when a structure is lawful, as when it is erected on the defendant's own premises [and we interpolate, as when it is erected by authority of law], and is not per se injurious to the plaintiff, then the plaintiff's cause of action arises not from the erection of the structure, but only for such injury as may result from the use of the structure. In other words, a thing which is lawful is not actionable until the plaintiff has suffered injury on account of it."

In the case at bar, the trial judge held that the injury to the land occurred as early as 1900, relying for such holding on the testimony of defendant's witness, W. E. Beattie, who testified that while he was president of Reedy River Manufacturing Company--from 1899 to 1905--he detected some odor at the wheel where the water was being churned over and over by the revolution of the vanes, but that it was not particularly offensive and not detrimental to health and did not affect either the rental or the actual value of the property. We do not think this testimony shows any injury which would have supported an action for damages at that time. Nor do we find any testimony whatever which would support a finding that any actionable injury occurred at any time prior to twenty years before this suit was commenced. Accordingly, even if it should be conceded that such a prescriptive right as is here claimed could be acquired by operation of law, no such right has actually been acquired in this case.

As to whether plaintiff is precluded from recovery on account of the fact that it purchased the land subsequently to the installation of the sewerage system:

Respondent contends that the original emptying of the raw sewage into the...