Hill v. City of Greenville, 16746

• Citation: 76 S.E.2d 294,223 S.C. 392
• Decision Date: 14 May 1953
• Docket Number: No. 16746,16746
• Parties: HILL et al. v. CITY OF GREENVILLE.
• Court: United States State Supreme Court of South Carolina

Page 294

76 S.E.2d 294

223 S.C. 392

HILL et al. v. CITY OF GREENVILLE.

No. 16746.

Supreme Court of South Carolina.

May 14, 1953.

A. C. Mann and W. H. Arnold, Greenville, for appellant.

Frank G. Carpenter, Greenville, for respondent.

STUKES, Justice.

This appeal involves the construction and application of section 701 of the Code of Laws of 1942 which is as follows:

'Whenever within the boundaries of any municipality, it shall be necessary or desirable to carry off the surface water from any street, alley or other public thoroughfare, over the private lands, property adjacent or adjoining such thoroughfare, upon demand from the owner or owners thereof, such municipality shall provide sufficient drainage for such water through open or covered drains except where the formation of the street renders it impracticable, along or under such streets, alleys or other thoroughfare in such manner as to prevent the passage of such water over such private lands or property: provided, that if such drains cannot be had along or under such streets, alleys or other thoroughfare, then the municipal authorities shall have the power and authority to obtain under proper proceedings for condemnation as for highways on payment of damages to the landowner, a right of way through the lands of such landowner for the necessary drains for such drainage. If any municipal corporation in this State shall fail or refuse to carry out the provisions of this section, any person injured thereby may have and maintain an action against such municipality for the actual damages sustained by such person.'

In May 1939 the plaintiffs purchased and moved to what is now 13 Ackley Street in the City of Greenville. It is a large lot with frontage of about 275 feet and depth of about 425 feet. It is separated from the intersection (to the north) of Ackley Street and Laurens Road by another large lot which fronts 212 feet on Ackley and upon which a church was being built at the time of the trial of this case. Between the lots, or just on plaintiffs' property, is an open ditch which follows the boundary line for a hundred feet or more and then meanders in a southeasterly direction through a low area on plaintiffs' lot and on across a new street, where there is a culvert, and finally to what is designated as a park on the plat in evidence.

The comprehensive plat has been most helpful; it contains contour lines on plaintiffs' and adjoining property, and directional arrows which show the flow of surface waters on the streets and contiguous lots. From the plat and the testimony, it is clear that the rear of plaintiffs' property is a relatively low area, referred to in the complaint as a swamp, to which the surface water from Ackley Street, augmented by that from Laurens Road, naturally flows.

Laurens Road was paved about 1921 by the State Highway Department and improved in 1940 by the installation of curbs and gutters, which increased the flow of surface water from Laurens Road into Ackley Street whence it finds its way into the drainage ditch and plaintiffs' premises. The evidence was in conflict as to the time of origin of this ditch. One of the plaintiffs testified that he cut it with his plough and shovel after the above Highway Department work increased the volume of water, but there was other testimony that it has been in existence since 1926 or earlier. In the view which we take of the applicable law this disputed fact is unimportant, because it is undisputed in the evidence that the damaging increase of water resulted from the highway construction and improvement of Laurens Road, all years before annexation to the city.

All of the area which has been mentioned was annexed to the appellant City of Greenville as of January 1, 1949. Before that it was unincorporated. Plaintiffs demanded of the city after annexation that it provide drainage which would protect their property from damage from the surface water which entered it through the ditch from Ackley Street. The city did nothing and this action for damages was brought in August 1951. The trial court submitted to the jury the issue of liability of the city under the quoted statute. In our view the statute creates no liability under the facts of this case and verdict should have been directed for the defendant, upon failure of which appellant's motion for judgment notwithstanding the verdict for plaintiff should have been granted. There was no appeal by plaintiff from the following findings of the court which are contained in the order refusing judgment non obstante:

'The evidence reveals that any accumulation of surplus (sic) waters from that whole drainage area took place when the Highway Department redid the Laurens Road, put in curbs and gutters, and that that was the inception of the excess water over the normal flow in that area. Of course, the City had nothing to do with that. This is conceded; and, from my observation of the testimony, I don't think that any reasonable inference could be drawn from that testimony that the City has done anything subsequent to the annexation of that area to increase or to contaminate or in any other wise put additional burden on the flow of the water over the plaintiffs' land; * * *.'

It would be quite unfair, unless required by the statute, to hold the city liable for delict of the State Highway Department which was committed years before plaintiffs' property became a part of the city; yet that would be the result of affirmance of the judgment which was rendered in this case. The appellant city and the respondents agreed in argument that the statute should be strictly construed, favorably to the city; but we think a fair construction, neither strained in strictness nor liberal beyond the ordinary meaning of the language employed, clearly results in its inapplicability here.

The statute plainly contemplates positive action by a municipality to render it liable for damages under the terms of it. The words are, repeating, 'Whenever * * * it shall be necessary or desirable to carry off the surface water from any street * * *, upon demand from the owner or owners thereof, such municipality shall provide sufficient drainage', etc. In this case the city did nothing; upon annexation, it took the territory, the plaintiffs' and others' lots and the streets as it found them, and until the city undertakes, quoting again from the statute, 'to carry off the surface water from any street * * * over the private lands,' no liability arises under the statute. The city has so far not deemed it 'necessary or desirable to carry off the surface water from' Ackley Street. If and when it does, by any artificial or added means, the terms of the statute may apply. This we take to be the simple meaning and effect of the words of the statute, and there is no occasion to resort to rules of construction. Independence Insurance Co. v. Independent Life & Acc. Ins. Co., 218 S.C. 22, 61 S.E.2d 399.

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