Davis v. Palmetto Quarries Co.

• Citation: 48 S.E.2d 329,212 S.C. 496
• Decision Date: 08 June 1948
• Docket Number: 16087.
• Parties: DAVIS v. PALMETTO QUARRIES CO.
• Court: United States State Supreme Court of South Carolina

48 S.E.2d 329

212 S.C. 496

DAVIS v. PALMETTO QUARRIES CO.

No. 16087.

Supreme Court of South Carolina

June 8, 1948

C. T. Graydon and Herbert & Dial, all of Columbia, for appellant.

Henry H. Edens, Henry Hammer and Claude N. Sapp, Jr., all of Columbia, for respondent.

STUKES Justice.

Appeal was originally filed by the defendant in an action against it in the Richland County Court by Amanda Howard Neal, plaintiff. That appeal has been discontinued by consent, but upon request of all counsel engaged we proceed to determine it as if Alice Davis were respondent. She is the plaintiff in an identical action in the lower court and is the respondent in a similar, pending appeal. The proceedings in the County Court in both actions were the same.

The action is for damages and to abate an alleged nuisance. It is alleged in the complaint that plaintiff for a long prior time and now is owner of a dwelling at 1209 Dover Street, Columbia, and occupies it with her family as a homestead; that the defendant had for a long time prior, and now has, possession of premises in the immediate vicinity on which it has long operated, and now operates, a stone quarry and it, 'its agents, servants and employees, have negligently, carelessly, recklessly, wantonly and wilfully in utter disregard of plaintiff's rights, managed supervised, maintained, controlled, used and operated the said quarry of the defendant in such a manner as to cause and still cause vibration of the earth to take place, and stone, dirt, dust and other substances to be thrown on plaintiff's premises, and great noises to continue at frequent intervals, and has maintained a nuisance, as a result of which plaintiff has been damaged'; that the delicts and nuisance of the defendant consist in numerous, specified particulars, without fault or negligence on the part of plaintiff; that the use of plaintiff's property is thereby destroyed, it being rendered unsuitable and unsalable for residential purposes, greatly depreciated and lessened in value, and, quoting again from the complaint, 'the comfort of the plaintiff and her family and their health and welfare has been and are being greatly impaired,' all to the plaintiff's damage in the sum of $3,000; that plaintiff has requested the removal of the quarry and the abatement of the nuisance, which defendant has refused. The prayer of the complaint is for judgment that the nuisance be abated and the defendant permanently enjoined and restrained from maintaining a stone quarry on its premises, and for judgment against the defendant for $3,000.

The grounds of appeal will be stated and discussed in the order in which the exceptions (to the disposition of which our opinion is confined) were taken to the rulings of the lower court. The first imputes error for refusal of a motion to require the plaintiff to elect, quoting from the motion, 'whether his cause of action is one for nuisance, caused by negligence, or whether he is suing on a nuisance per se.' The record as it reaches this court discloses no present controversy thereabout. In the order under appeal it was held that the complaint alleges the existence of a nuisance by reason of the location of the defendant's business, its surroundings and the manner in which it is operated, and also alleges certain acts of negligence, wantonness and wilfullness which are practically inseparable and exist as a part of the nuisance; further that the plaintiff is proceeding on the theory of the existence of a nuisance per accidents. There is no appeal by plaintiff thereabout, so it is the law of this case that the complaint states a cause of action for nuisance per accidents. The classification is made clear in 39 Am.Jur. 289 et seq. Nuisances, Sec. 11, and the distinction has heretofore been pointed out by this court. Woods v. Rock Hill Fertilizer Co., 102 S.C. 442, 86 S.E. 817, Ann.Cas.1917D, 1149. Sec. 4 of the cited text (39 Am.Jur. 282) distinguishes between the torts of nuisance and negligence, but concludes that they are frequently coexisting and practically inseparable.

The defendant cannot complain if the plaintiff has alleged, and thereby undertaken to prove, more than enough to maintain her action for nuisance. See upon the...