Hand v. Catawba Power Co.

• Decision Date: 28 December 1911
• Citation: 73 S.E. 187,90 S.C. 267
• Parties: HAND v. CATAWBA POWER CO.
• Court: South Carolina Supreme Court

73 S.E. 187

90 S.C. 267

HAND v. CATAWBA POWER CO.

Supreme Court of South Carolina

December 28, 1911

Appeal from Common Pleas Circuit Court of York County; Ernest Moore Special Judge.

Action by A. S. Hand against the Catawba Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Osborne Lucas & Cocke, Witherspoon & Spencers and J. E. McDonald, for appellant. Thos. F. McDow and J. H. Manon, for respondent.

HYDRICK J.

Plaintiff owns a mill and water power on Allison's creek, a tributary of Catawba river, which he purchased in September 1906. In February, 1904, defendant completed a dam across the river about 3 miles below the north of the creek. Plaintiff's mill is about 4 miles up the creek from the river. Defendant's dam backs water up the river and up the creek to about 2 3/4 miles below plaintiff's mill. Before defendant's dam was built, plaintiff's water power was good, and little or no trouble was experienced by the owner on account of the deposition of sand in the creek. Occasionally a freshet would deposit sand in the creek below the mill, but not enough to interfere seriously with its operation, and usually the next freshet would take it away. There was testimony that after the closing of defendant's dam, and before plaintiff acquired title to the property, the water power had been affected at times, though not seriously by the deposition of sand in the creek, which was supposed to have been caused by the defendant's dam. After plaintiff bought the property, the deposition of sand in the creek increased to such an extent that, in December, 1907, he was compelled to abandon his mill and water power, same having been, for all practical purposes, totally destroyed. This action was brought to recover damages for its destruction; plaintiff alleging that defendant's dam obstructed the natural flow of sand and water in the creek, caused the sand to be deposited therein, and the bed of the creek to be raised thereby, till his water power was destroyed. Defendant denied that its dam was the cause of the injury complained of. According to the testimony of the defendant's engineers, the fall in the creek from plaintiff's mill to the backwater from defendant's dam is about 23 1/2 feet, and they say that it is a physical impossibility for defendant's dam to have caused plaintiff's injury. Notwithstanding, there was testimony which reasonably warranted a contrary opinion, and the jury took the contrary view, and found a verdict for the plaintiff, upon which judgment was duly entered.

The court allowed plaintiff's witnesses, who were not experts, but who had for many years known and observed plaintiff's water power, and were familiar with the creek and the surrounding country, and had observed the results of freshets in the creek and river, to express their opinions that defendant's dam caused plaintiff's injury. Defendant contends that this ruling was erroneous. The rule is well settled that, when the matter or thing to which the evidence relates cannot be reproduced or clearly described to the jury, the witness, though not an expert, may give his opinion, after stating the facts and circumstances upon which it is based. Seibels v. Blackwell, 1 McMul. 56; Jones v. Fuller, 19 S.C. 70, 45 Am. Rep. 761; Chemical Co. v. Kirven, 57 S.C. 448, 35 S.E. 745. The principal difficulty lies in the proper application of the rule; that is, in deciding when...