Cooley v. Clifton Power Corp.
| Decision Date | 17 December 1984 |
| Docket Number | No. 84-1053,84-1053 |
| Citation | 747 F.2d 258 |
| Parties | Marjorie Linder COOLEY, Appellant, v. CLIFTON POWER CORPORATION, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Bradford W. Wyche, Greenville, S.C. (Wyche, Burgess, Freeman & Parham, Greenville, S.C., on brief), for appellant.
Edward R. Cole, Spartanburg, S.C. (Butler, Means, Evins & Browne, Spartanburg, S.C., on brief), for appellee.
Before WINTER, Chief Judge, and WIDENER and PHILLIPS, Circuit Judges.
Appellant Marjorie Linder Cooley brought this diversity action against appellee Clifton Power Corporation (Clifton Power), seeking damages and injunctive relief for the flooding of her property caused by the maintenance and operation of a hydroelectric dam by Clifton Power. Clifton Power has operated a dam and a hydroelectric project on the Pacolet River in Spartanburg County, South Carolina since July 1981. Mrs. Cooley owns approximately 97.68 acres of property on the Pacolet River which is located upstream from the dam. 1 Prior to September 20, 1983 she had owned an undivided interest in a larger tract of which the 97.68 acre tract was a part, the larger tract having since been partitioned. When Clifton Power closed the dam gates in 1981 to begin operation of its hydroelectric project, waters of the Pacolet River were impounded to form a narrow lake with an elevation of 594.3 feet above mean sea level (MSL). It is undisputed that with the gates of the Clifton dam closed, the natural elevation of the water level in the Pacolet River is increased, and on plaintiff's property the elevation is increased about 6 feet above normal height of the stream. As a result of this increase in the elevation of the water level, a strip of Mrs. Cooley's riverfront remains under water. The strip flooded is about 30 feet wide at the lower end of the property and, while it must vary in width, decreases to about 2 feet wide at the upper end of the property. It comprises about 1/2 acre of her property and is somewhat more than 1700 feet long following the river as it meanders.
For almost a century, a dam has existed at or near the present site of Clifton dam. Operation of a dam at this site was virtually continuous until 1973, when the reservoir pool was drained and hydroelectric power production ceased. During this period, Mrs. Cooley and her predecessors in interest executed a series of leases with Clifton Power's predecessors in interest. These leases covered the lands in dispute here abutting the Pacolet River. The earlier leases referred to use of the leased land for pasture, but beginning in 1968 the leases were bounded by the 609 contour line and merely leased all the land. 2 The last in the series of leases expired in 1973 and since that time no other lease of the Cooley riverfront property has existed in favor of either Clifton Power or its predecessors in interest. Before Clifton Power acquired the Clifton dam, it considered whether or not to obtain flowage easements from upstream owners. Based on a feasibility study performed by an hydrologist, Clifton Power decided that acquisition of flowage easements was unnecessary because the normal 594.3 feet MSL operating level would not exceed the natural river banks. Clifton Power has never offered to obtain flowage easements from Mrs. Cooley or from any other owners of property along the Pacolet River. It attempted, however, to negotiate a lease with Mrs. Cooley to cover an elevation of 609 feet MSL in the event of catastrophic flooding, and we note that this is the same level as that described in the last lease to expire. The negotiations failed and as a result Mrs. Cooley has never given Clifton Power permission to flood her property.
The issue in this case is whether South Carolina law permits a downstream dam operator to impound the waters of a river, without first obtaining the consent of an upstream riparian property owner, and cause the water to inundate the upstream owner's property. The district court, sitting without a jury, determined that Clifton Power had not flooded Mrs. Cooley's property under S.C. Code Ann. Sec. 49-11-10 (Law Co-op. 1976) 3 and accordingly entered judgment in favor of Clifton Power. We vacate and remand for the issuance of an injunction and the ascertainment of damages.
Section 49-11-10 provides in pertinent part that "[n]o person shall be permitted or allowed to make or keep up any dam or bank to stop the course of any waters so as to overflow the lands of another person without the consent of such person first had and obtained...." 4 The district court, however, construed Sec. 49-11-10 to apply only to those situations in which a dam operator has caused a river to exceed its "natural banks" and "overflow the lands of another person," making a cause of action under Sec. 49-11-10 depend upon a finding that Clifton Power caused the Pacolet River to exceed its natural banks. The court considered the distinctive visual appearance, topography, soil characteristics, vegetation, and historical flow data of the Pacolet River, and found that the natural banks of the river exceeded the 594.3 feet MSL elevation of the river when dammed up. Since the operation of the dam had not caused the Pacolet River to exceed what the district court found to be its natural banks, the district court found as a matter of law that Clifton Power had not violated Sec. 49-11-10.
We believe the district court, in adding the natural bank prerequisite to Sec. 49-11-10, decided the case contrary to the plain words of the statute and as well in the common law of South Carolina. As we construe the statute, if a dam operator stops the course of any waters so as to overflow the lands of another person, Sec. 49-11-10 has been violated. An explicit inquiry under the statute is to determine whether a dam operator has obtained the consent of a landowner prior to elevating the natural flow of the river. See Lampley v. Atlantic Coast Line R. Co., 71 S.C. 156, 50 S.E. 773, 774 (1905). Because an increase in the elevation of a river naturally will cause the water to back up on upstream property, a landowner's consent to the obstruction of waterflow is necessary to preclude a dam operator from depriving the upstream landowner of his property. Clearly, the purpose of Sec. 49-11-10 is to prevent downstream dam owners from constructively appropriating property from upstream owners. See Key Sales Co. v. South Carolina Electric and Gas Co., 290 F.Supp. 8, 23 (D.S.C.1968), aff'd on other grounds, 422 F.2d 389 (4th Cir.1970).
Despite the age of the statute, that part of it in which we are interested has apparently been construed only twice by the South Carolina Court.
In Brisbane v. O'Neall, 3 Strob 348 (1847), the court gave the statute a literal construction and required a lower landowner who had obstructed the drainage from a swamp so as to flood the land of an upper owner, to maintain a canal to carry off the waters "in as expeditious a manner as they would have passed through the natural course or channel." p. 354. The court reasoned that the statute should not interfere with the rights of property as they existed at common law and that "... notwithstanding the system and speedy remedies of that Act, it was not to be construed to authorize any person to keep water at any time on another's land." p. 354.
In Lampley v. Atlantic Coast Line R. Co., 71 S.C. 156, 50 S.E. 773 (1905), the court construed the 1902 codification of the statute (Sec. 1456 of the Code of Laws of 1902) which had changed in no respect significant here. The court held that the statute applied in actions of landowners seeking to recover for the wrongful obstruction of a watercourse. 50 S.E. p. 773, 774. In that case, a river was obstructed on account of construction of a railroad, causing damage by the overflow. While the court held that a cause of action correctly lay under the statute, it further held that the plaintiff had consented to the overflow so there could be no recovery for the mere overflow absent negligence. The court did not indicate that it construed the statute other than literally, and the concurring opinion of Justice Woods (later Chief Justice and yet later a member of this court) indicates that the obstruction of a stream is actionable when "for example, it may flood the lands of persons higher up the stream, from whom no right of way was acquired...." p. 774.
Thus, in the two South Carolina decisions construing the statute, it has received a literal construction which is not inconsistent with that set out in Key Sales Co., mentioned above, the only previous federal case coming to our attention construing it.
Other South Carolina decisions have addressed the question of the owner or operator of a dam backing water onto an upstream property owner and have decided the same under the common law of South Carolina. For one reason or another, except Brisbane mentioned just above, the cases do not mention Sec. 49-11-10 or its predecessors. Perhaps the reason is that Brisbane decided that the statute did not change common law property rights. But whatever the reason for the omission, we think the common law of South Carolina is consistent with the statute.
The first case we have found is Taylor v. Hampton, 4 McCord 96 (1827). 5 In that case the court affirmed a judgment for the plaintiff for the defendant raising the elevation of a mill pond 2 feet. The case did not state, however, the extent of the flooding which the 2 feet raise in elevation caused. The court reasoned that: "a servitude is required in this case by the defendant from the plaintiff of overflowing his land." p. 110.
The next case was Omelvany v. Jaggers, 2 Hill 634 (1835). The court in that case reversed a...
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Cooley v. F.E.R.C., 87-1249
...and common law by causing the water level of the Pacolet to rise six feet at Cooley's lower property line. Cooley v. Clifton Power Corp., 747 F.2d 258 (4th Cir.1984). On remand, the district court awarded damages of $89.50 for the three-year rental value of that flooded land and injunction ......