Faust v. Richland County

• Decision Date: 11 November 1921
• Docket Number: 10752.
• Citation: 109 S.E. 151,117 S.C. 251
• Parties: FAUST v. RICHLAND COUNTY. KELLY v. RICHLAND COUNTY.
• Court: South Carolina Supreme Court

109 S.E. 151

117 S.C. 251

FAUST v. RICHLAND COUNTY.

KELLY v. RICHLAND COUNTY.

No. 10752.

Supreme Court of South Carolina

November 11, 1921

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Actions by J. H. Faust and Ben L. Kelly, respectively, against Richland County. Judgments for plaintiffs, and defendant appeals. Affirmed.

Cothran J., and Rice and Mauldin, Circuit Judges, dissenting.

The complaint alleged, inter alia:

"(2) That a certain highway, known as the Two-Notch or Camden road, and leading from Columbia, S. C., to and beyond Camden, S. C., is one of the highways under the management control, and supervision of the defendant, it being the defendant's duty to keep the said highway in proper and suitable repair.

(3) That the plaintiff herein did, at the time hereinafter mentioned, own, and now owns, a lot of about three acres of land, upon which his dwelling stands, situate on the right-hand side of the said Two-Notch road about a mile northeast of the city of Columbia, plaintiff's land and his dwelling being situated on the side of an elevation or hill which slopes toward the east, so that all the waters accumulating from rainfall upon a considerable area of land lying west of plaintiff's lot, flows upon and over the plaintiff's property, first, however, crossing or flowing under the highway hereinabove mentioned.

(4) That, previous to the making of the repairs on said highway, hereinafter referred to, there extended along both sides of the said highway which passes in front of the plaintiff's premises a drainage ditch, into which the rainwater which fell on lands in that immediate vicinity was caught and conveyed to another ditch which intersects the said highway at right angles, and which passes through and over the plaintiff's premises, and by means of which the said water was conveyed away, without doing injury to plaintiff's premises.

(5) That on or about the 1st day of December, 1920, the defendant herein, through its servants and agents, while engaged in making repairs to said highway, carelessly and negligently, and in utter disregard of the rights of the plaintiff, filled in the said drainage ditches, which ran along the side of the road in front of plaintiff's house, and elevated the roadbed to such an extent and in such a way as to cause the rain which falls upon the road, and lots adjacent thereto on the southern side of the plaintiff's premises, to accumulate in great volume and to flow with great force across plaintiff's yard, under his house and through his premises, said water carrying with it great quantities of trash, leaves, litter, and such filth as accumulates upon a public road, and depositing the same on plaintiff's premises; and the plaintiff alleges that the said rainwater, which has been caused to flow through his premises as aforesaid, has washed great holes in his garden and yard, and has undermined the pillars of his house, and has caused him great damage to repair the same.

(6) And the plaintiff further alleges that the defendant herein, by elevating the roadbed in front of the plaintiff's premises, has built a dam which prevents the natural flow of the rainwater that accumulates on the land adjacent to plaintiff's premises, and which ponds the same up in front of plaintiff's premises, where the said rainwater is accumulated in great volumes, and from which it flows in great volumes and with great force, through a ditch and culvert leading through the said highway and through the plaintiff's premises; and the plaintiff alleges that, by reason of its carelessness and negligence in elevating the said roadbed and ponding the water in front of the plaintiff's premises, and causing the same to flow in great and unnatural volume through the plaintiff's premises, the defendant has washed away a large part of the top soil of the plaintiff's garden, and has washed great holes therein and rendered the same unfit for use."

W. C. McLain, of Columbia, for appellant.

J. H. Hammond and J. S. Verner, both of Columbia, for respondents.

EUGENE B. GARY, C.J.

The only question properly and specifically raised is by the second exception. The cases of Lawton v Railway, 61 S.C. 548, 39 S.E. 752, 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, ^[1] and Hopkins v. Clemson College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L. R. A. (N. S.) 243, clearly show that if an individual, instead of the defendant, had flooded the lands of the plaintiff in the manner alleged in paragraph 6 of the complaint, he would have subjected himself to an action for damages.

But there is even a stronger reason why the demurrer was properly overruled, to wit: The overflowing of the plaintiff's lands in the manner alleged in the complaint was in violation of the constitutional provisions prohibiting the taking of property without due process of law, and likewise without just compensation being first made.

In Hopkins v. Clemson College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L. R. A. (N. S.) 243, the plaintiff sued the defendant for damages to his farm resulting from the college having built a dyke, which forced the waters of the Seneca river across his land, whereby the soil was washed away and the land rendered unfit for agricultural purposes.

The Supreme Court of the state dismissed the complaint, on the ground that the state was a necessary party, and had not consented to be sued. Thereupon the plaintiff sued out a writ of error to the United States Supreme Court. In that case the United States Supreme Court said:

"Neither a state nor an individual can confer upon an agent authority to commit a tort, so as to excuse the perpetrator. In such cases the law of agency has no application--the wrongdoer is treated as a principal and individually liable for the damages inflicted and subject to injunction against the commission of acts causing irreparable injury. * * *

Neither public corporations nor political subdivisions are clothed with that immunity from suit which belongs to the state alone by virtue of its sovereignty. In Lincoln County v. Luning, 133 U.S. 529, 530, the court said that: 'While the county is territorially a part of the state, yet politically it is also a corporation, created by and with such powers as are given to it by the state. In this respect it is a part of the state only in that remote sense in which any city, town, or other municipal corporation may be said to be a part.' The court there held that the Eleventh Amendment was limited to those cases in which the state is the real party, or party on the record, but that counties were corporations which might be sued. * * * Undoubtedly counties, cities, townships, and similar bodies politic often have a defense which relieves them from responsibility where a private corporation would be liable. But they must at least make that defense. They cannot rely upon freedom from accountability, as could a state. * * * If the state had in so many words granted the college authority to take or damage the plaintiff's property, for its corporate advantage without compensation, the Constitution would have substituted liability for the attempted exemption. But the state of South Carolina passed no such act, and attempted to grant no such immunity from suit, as is claimed by the college. * * *

But an examination of the cases cited, in any respect similar to this, will show that they involve questions of liability in a suit, rather than immunity from suit. Most of them were actions for torts committed, not by the public corporation itself, but by officers of the law. * * * That general rule is of force in South Carolina, as appears from Gibbes v Beaufort, 20 S.C. 213, 218, cited in the opinion of the Court below, where it was said that 'a municipal corporation, instituted for the purpose of assisting the state in the conduct of local civil government, is not liable to be sued in an action of tort for nonfeasance or misfeasance of its officers, in regard to their public duties, unless expressly made so by statute.' But the plaintiff is not seeking here to hold the college liable for nonfeasance or misfeasance either of its own officers or officers of the public. This is a suit against the college itself for its own corporate act in building a dyke, whereby the channel had been narrowed, the swift current had been diverted from the usual course across the plaintiff's farm, and, as is alleged, destroying the banks, washing away the soil, and for all practical purposes as effectually depriving him of his property as if there had been a physical taking. * * *

For protecting the bottom land, the college, for its own corporate purposes and advantage, constructed the dyke. In so doing it was not acting in any governmental capacity. The embankment was, in law, similar to one which might have been built for private purposes by the plaintiff on the other side of the river. If he had there constructed a dyke to protect his farm, and in so doing had taken or damaged the land of the college, he could have been sued and held liable. In the same way, and on similar principles of justice and legal liability, the college is responsible to him if, for its own benefit and for protecting land which it held and used, it built a dyke which resulted in taking or damaging the plaintiff's farm. * * * These suggestions, though made in a plea to the jurisdiction, afford no reason why the college should be granted immunity from suit, when it is claimed that, in violation of the Constitution, it has taken private property for its corporate purposes without compensation. * * * And, if the facts hereafter warrant it, the college may be enjoined against further acts looking to the

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