Deason v. Southern Ry. Co.

• Decision Date: 31 October 1927
• Docket Number: 12305.
• Citation: 140 S.E. 575,142 S.C. 328
• Parties: DEASON v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

140 S.E. 575

142 S.C. 328

DEASON v. SOUTHERN RY. CO.

No. 12305.

Supreme Court of South Carolina

October 31, 1927

Rehearing Denied Dec. 2, 1927.

Appeal from Common Pleas Circuit Court of Hampton County; John S Wilson, Judge.

Action by Catherine M. Deason against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cothran J., and Watts, C.J., dissenting.

The grounds of motions for a directed verdict and the exceptions on part of defendant are as follows:

A. Water is surface water.

B. Ditch was stopped in the year 1900, when land belonged to T. A. Causey, and it has remained in same condition ever since.

C. Six or seven years later, 1906 or 1907, Mrs. Deason moved to and established her home where she now is, east of the pond.

D. Eight or ten years later, according to Mr Deason, he made complaint about the pond. We say we never heard of the matter until 1922 or 1923.

E. Pond is a wet weather pond. That is, it has water in it during heavy rains, and is dry in dry weather. It stays dry for months at a time, even so that grass grows 2 or 3 feet high all over it.

F. It is not dangerous at all times and under all circumstances. It is not a nuisance per se.

Exceptions.

(1) It was error for the presiding judge to refuse defendant's motion, made at the close of all the testimony, and upon the following ground: "All of the proof in the case shows that the water complained of was surface water, and there is a total absence of proof of any actionable negligence on the part of defendant that would support any cause of action alleged by plaintiff"; the error being:

(a) The entire proof on the point, which was undisputed showed that the water complained of was surface water, and that it was an old ditch, and not a natural water course, that was alleged to have been stopped up.

(b) The entire, undisputed proof on the point showed that said old ditch was alleged to have been stopped up nearly ten years before plaintiff became the owner of the land, when plaintiff's father and grantor was the owner thereof, and that the same has remained closed ever since.

(c) That plaintiff, deliberately, and with notice and knowledge of existing conditions, nearly ten years after defendant had purchased its right of way and erected its said embankment, went into possession of land, and erected her residence just east of, and very near to, a wet weather pond that has always been wet in wet weather and dry in dry weather, since the earliest recollection of the community's oldest citizens.

(d) That the undisputed proof shows defendant's alleged acts, set out in the complaint, that of obstructing surface water, have never, at any time, as far as plaintiff and her premises and property are concerned, created a nuisance per se, nor have they collected surface water in large amount and cast it in concentrated form, through an artificial channel, or otherwise, on plaintiff's land so as to wash same away and destroy it, or otherwise take it.

(2) It was error for the presiding judge to charge the jury as follows: "Now, gentlemen, a good deal has been said to you about surface water, and you have heard a great many of these decisions read, sometimes some of them absolutely are confusing, but, as I understand the rule of this state, the court has decided that surface water is a common enemy, surface water is a common enemy; and, while you have the right to protect yourself from surface water, you can protect your own self, but you cannot back it on another man there at all to create a nuisance, you cannot do that. I understand that's decided in half of the cases you mentioned, and you can back the water and protect yourself, and you cannot back it on another person's land, another's land, and in such a way as to create a nuisance and to destroy his property"; the error being that said charge embodied an incorrect proposition of law, in that the only exceptions to the common-law rule, that a proprietor has a right to handle surface water in any way that he sees fit, are: (1) It is subject to the general law in regard to nuisence, if its accumulation has become a nuisance per se, as, for example, when it has become dangerous at all times, and under all circumstances, to life, health or property; and (2) it is an actionable injury, for a person to collect surface water into an artificial channel, and cast it on another's land, in concentrated form, and his honor's charge did not so limit a landowner's right to fight surface water.

(3) It was error for the presiding Judge to charge the jury as follows: "Now, in this case, whether a nuisance has been created, or whether all that property has been destroyed and made worthless, and that's a matter entirely for you to determine whether that's been the case or not"; the error being that said charge did not contain a correct proposition of law, and, further, the positive, undisputed, proof in the case showed that no nuisance per se had been created and there was a total absence of proof to the effect that plaintiff's property had been destroyed by collecting water into an artificial channel and casting on plaintiff's land in concentrated form, or had been destroyed in any other way.

J. W. Manuel, of Hampton, for appellant.

Randolph Murdaugh, of Hampton, for respondent.

The following was prepared as a dissent from the opinion of Mr. Justice COTHRAN, but as Justices BLEASE and STABLER concur in the views therein expressed, the opinion becomes the judgment of the Court, which is that the judgment of the circuit court be affirmed:

RAMAGE, A. A. J.

I cannot agree with the opinion of Mr. Justice COTHRAN that the judgment of the lower court ought to be reversed; on the contrary, I think that it ought to be affirmed for the reasons which follow:

This is an action brought by respondent against the appellant, for the purpose of recovering damages caused by the acts on the part of the defendant in preventing the flow of water from a pond on plaintiff's property, by the erection of an embankment without adequate provision for drainage; the action being based upon the grounds that defendant had created and maintained a nuisance, and that the said acts of the defendant amounted to the taking of her property without due process of law, and without just compensation being first made. The answer was a general denial. At the trial, the defendant moved for a directed verdict, which was refused. The grounds of the motion and the exceptions on the part of the defendant will be set out in the report of the case. The jury found a verdict for the plaintiff in the sum of $500.

I think that this case is ruled by the principles laid down by that acute legal mind, the late Chief Justice Gary, in Baltzeger v. Railway, 54 S.C. 242, 32 S.E. 358, 71 Am. St. Rep. 789:

"The only exception to the rule that surface water being a common enemy, every landowner has the right to deal with it in any such manner as he may see fit, is that it is subject to the general law in regard to nuisances, if its accumulation has become a nuisance per se, as for example, whenever it has become dangerous at all times and under

all circumstances to life, health or property." (Italics added.)

Judge Wilson charged the jury as follows on the point really at issue in this case:

"*** Surface water is a common enemy; and, while you have the right to protect yourself from surface water, you can protect yourself, but you cannot back it on another there at all to create a nuisance, you cannot do that. I understand that's decided in half the cases you mentioned, and you can back the water and protect yourself; and you cannot back it on another person's land, on another's land, and in such a way as to create a nuisance and destroy his property."

It would be hard to find a clearer or fairer statement of the law than that, and it is supported by the authorities, but, even if no court had ever decided such a principle, it carries on its face its own best commendation.

These principles were recognized in Lawton v. Railway, 61 S.C. 548, 39 S.E. 752, in which case, however, the allegations of the complaint were not broad enough to cover this principle; also in the following other cases: Brandenberg v. Zeigler, 62 S.C. 18, 39 S.E. 790, 55 L. R. A. 414, 89 Am. St. Rep. 887; Cain v. Railway, 62 S.C. 25, 39 S.E. 792; Hopkins v. Clemson College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L. R. A. (N. S.) 243; and Faust v. Richland County, 117 S.C. 251, 109 S.E. 151.

Indeed, we find defendant in its exceptions also agreeing that this is a correct proposition of law, but denying its application to the case at bar.

"Nuisance" is thus defined by Bouvier:

"Anything that unlawfully worketh hurt, inconvenience or damage. 3 Bla. Com. 5, 216; Cooley, Torts, 670. That class of wrongs that arises from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal. *** A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. It produces damage to but one or two persons, and cannot be said to be public. *** If a thing is calculated to interfere with the comfortable enjoyment of a man's house, it is a nuisance. *** Every citizen holds his property subject to the implied obligation that he will use it in such a way as not to prevent others from enjoying the use of their property. *** A mixed nuisance is one which, while producing injury to the public at large, does some special damage to some individual or class of individuals (Wood, Nuisance, 35). *** Keeping hogs or other animals so as to incommode his neighbor and render the air unwholesome. *** The remedies are by an action for the damage done by the owner in the case of a private

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