Garmany v. Southern Ry. Co

• Citation: 149 S.E. 765
• Decision Date: 18 September 1929
• Docket Number: (No. 12731.)
• Parties: GARMANY. v. SOUTHERN RY. CO. TERRY. v. SAME.
• Court: United States State Supreme Court of South Carolina

149 S.E. 765

GARMANY.

v.SOUTHERN RY. CO.

TERRY.

v.SAME.

(No. 12731.)

Supreme Court of South Carolina.

Sept. 18, 1929.

Cothran, J., dissenting.

Appeal from Common Pleas, Circuit Court of Jasper County; T. J. Mauldin, Judge.

Actions by J. R. Garmany and by P. F. Terry against the Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Frank G. Tompkins, of Columbia, and J. W. Manuel, of Hampton, for appellant.

John P. Wise and H. K. Purdy, both of Ridgeland, for respondents.

CARTER, J. These suits by J. R. Gar-many, as plaintiff, against the Southern Railway Company, and P. F. Terry, as plaintiff, against the same defendant, were commenced In the court of common pleas for Jasper county, September 25, 1926, for the recovery of damages to lands and crops of the plaintiffs in said county of Jasper, at or near the town of Hardeeville, on account of alleged diversion and obstruction of surface water by the defendant. The defendant set up a general denial. By agreement the cases were tried together, at the December, 1926, term of court of common pleas, for said county, before his honor, Judge T. J. Mauldin, and a jury. At the conclusion of the testimony the defendant made a motion for a directed verdict. His honor, Judge Mauldin, after due consideration, refused the motion and submitted the case to the jury. The jury returned a verdict for the plaintiff J. R. Garmany in the sum of $700 as actual damages and $300 as punitive damages, and a verdict for the plaintiff P. F. Terry in the sum of $100 as actual damages. The defendant made a motion for a new trial, which motion the court refused. From the entry of judgment on the verdicts, the defendant pursuant to due notice has appealed to this court, and asks a reversal of the judgment in each case upon the grounds stated in the exceptions.

The exceptions are eight in number, and several of the exceptions contain a number of subdivisions, but it will not be necessary to consider the same separately. Under the view we take of the case, there are three main questions involved in the appeal, namely:

(1) Did the presiding judge err in refusing defendant's motion for direction of a verdict?

(2) Did the presiding judge err in his instruction to the jury?

(3) Did the presiding judge err in refusing defendant's motion for a new trial?

While there are several minor questions presented, the answer to these questions will dispose of the appeal.

As to the first question: Did the presiding judge err in refusing defendant's motion for a directed verdict? This motion was based upon the following grounds:

"(1) That absolutely no inference can be drawn from the testimony, except that the water complained of is surface water, and there is a total failure of proof that would tend to substantiate any cause of action whatever against the defendant in this case.

"(2) There is absolutely no testimony from which any possible inference could be drawn that would tend to substantiate or support plaintiffs' allegations to the effect that defendant, its agent, servants, and employees, collected surface water into an artificial channel and cast it upon plaintiffs in concentrated form to their injury and damage.

"(3) There is a total failure of proof from which any possible inference can be drawn that would support or tend to support any cause of action on behalf of plaintiffs by reason of the alleged acts complained of in the two complaints in these two actions."

There is no question about the water alleged to have caused the damage being surface water, it is so stated in the agreed statement of facts; but the question to be considered is whether or not, under the law of this state as to surface water, there was any testimony in the case which tended to establish liability against the defendant and warranted the presiding judge in submitting the case to the jury.

The rule of law of force in this state governing the control of surface water has been so often stated by this court that we do not deem it necessary to enter into a discussion of the rule at this time. For a full discussion of the subject, reference may be had to the cases of Brandenberg v. Zeigler, 62 S. 0. 18, 39 S. E. 790, 55 E. R. A. 414, 89 Am. St. Rep. 88T, and authorities therein cited; also Cain v. South Bound R. R. Co., 62 S. C. 25, 39 S. E. 792; Touchberry v. Railroad Co., 87 S. C. 415, 69 S. E. 877; Rentz v. So. Ry. Co., 82 S. C. 170, 63 S. E. 743;' Deason v. So. Ry. Co., 142 S. C. 328, 140 S. E. 575; Rivenbark v. A. C. L. R. R. Co., 124 S. C. 136, 117 S. E. 206.

For the purposes of this case we deem it sufficient to state that surface water is regarded as a common enemy, and every landed proprietor has the right to use such means as he deems necessary or expedient for the protection of his property from damages it may cause, except that the landed proprietor must not handle it in such a way as to create a nuisance, and must not by means of a ditch or other artificial means collect water and cast it in concentrated form upon the lands of another, to the damage of his lands or health, nor by such means conduct surface water in concentrated form to a point where it results in injury to another's property or health. Such artificial channel need not necessarily extend to the line or edge of the injured person's lands, in order to sustain an action for damages, but must extend to such a point that the surface water conveyed therein or thereby results in injury to such person's lands or health.

Was there any testimony in the case at bar tending to establish such a state of facts; that is, did the defendant, by means of a ditch or other artificial means, collect surface water and cast it in concentrated form upon the lands of the plaintiffs, to their damage, or by such means conduct it to such a point that it damaged plaintiffs' lands or crops thereon? The question of nuisance or injury to health is not involved in this case.

In this connection we call attention to the following testimony, and especially to that we have italicized:

In the course of his testimony, Mr. H. W. Thomas, a witness for the plaintiffs, stated:

"I have lived near Hardeeville, Jasper county, for 20 years, and I know where Garmany's place is, and where Terry's place is, and have known those places for 20 years. Both are on west side of Southern Railway, and they adjoin each other. North of Garmany's place was a little hill, beside the section houses, and then just above that was a pond of water, which would at times accumulate a lot of water there, and the railroad went in there and removed this dirt, right at the section houses beside this hill, and threw the water from there down through Garmany's place. Between where the water accumulated and Garmany's place was a hill. The most of water stayed there until it evaporated. When it did run, it did not run toward Garmany, but went back in direction of Savannah river swamp, in western direction. A number of acres holding water accumulated right beside where they cut ditch to take water down on Garmany's place, about six or eight or maybe twelve acres with water standing on it. That water goes right from the place where they removed dirt right onto Garmany's place. Garmany's place comes first; then Terry's adjoins his. Dirt was removed before last July. I saw land in July of last year. Along during the latter part of July, when they had this water to do so much damage there, I passed his place and saw his ground standing under water, except a small portion where his house is. Most of the water came from above, where they cut the drain and let water on him from pond above. There was a sewer pipe under roadbed right opposite Garmany's place. Very little water was going through there, because a door was built and put against the pipe and stopped the water. * * *

"Q. Now, the dirt removed that you spoke of; you say it was on the right of way? A. Yes, sir; the ditch on the right of way, and went along in front of the section houses, extending about 150 yards in length. Ditch extends both ways, above and below section houses. It is about 600 yards from edge of Garmany's property to ditch. The upper edge of Garmany's property is from 400 to 600 yards from ditch. Ditch is in practically same place other ditch was, but this is larger ditch. I know a ditch has been along there, but I never paid any attention before to any ditch there to amount to anything.

"Q. And this was cut in the same place where you saw the other one, however small the other one was? A. Yes, sir; I have the slightest recollection of a ditch being there right where this one is now, and nothing like this one there now."

On this point the plaintiff in his testimony stated:

"Q. Just north of your place, what unusualwas over there on Mr. Hey ward's land? A. (No answer.)

"Q. What was the character of the land? A. Mr. Hey ward?

"Q. Yes; right north of you. A. It was hilly.

"Q. It was hilly land? A. Yes, sir.

"Q. Did this land have any hills between your land and Mr. Heyward's land? A. It did. There was always a basin of water up in there of about three or four acres.

"Q. Where did this water get out of the basin? A. It would rise, and then it would fall, and it would go out toward the north, this way (indicating).

"Q. And whenever it overflowed, would it come back toward your land? A. No, sir; it would go north from my land.

"Q. Why wouldn't it come back on your land? A. Just about the section houses, or above, what we might term an embankment, and it was high there, and it held the water from me. It was just this way (indicating). It held the water, like my hand, up in there. It was just a basin. One morning of April, or May, this year, Mr. Duncan, supervisor of the railroad, had a train down there hauling dirt. I asked Mr. Duncan if he was building a double track now, and he said, 'No, we are cutting that hill, and the water we got down in here, because, when our men are switching on that side track, they have got to get out in...