Johnson v. Phillips

• Decision Date: 24 February 1993
• Docket Number: No. 2028,2028
• Citation: 315 S.C. 407,433 S.E.2d 895
• Parties: R. Keith JOHNSON, Trustee, Respondent, v. Robert B. PHILLIPS, Andrew F. Phillips, and Opal B. Phillips, Appellants. . Heard
• Court: South Carolina Court of Appeals

Page 895

433 S.E.2d 895

315 S.C. 407

R. Keith JOHNSON, Trustee, Respondent, v. Robert B. PHILLIPS, Andrew F. Phillips, and Opal B Phillips, Appellants.

No. 2028.

Court of Appeals of South Carolina.

Heard Feb. 24, 1993.

Decided June 7, 1993.

Rehearing Denied Aug. 11, 1993.

Certiorari Granted May 18, 1994.

Desa A. Ballard, of Ness, Motley, Loadholt, Richardson & Poole, Barnwell, for appellants.

Stephen R. McCrae, Jr., of Kennedy, Covington, Lobdell & Hickman, Rock Hill, for respondent.

BELL, Judge:

This is a dispute between adjacent landowners over the diversion of surface water caused by the development of a residential subdivision. Donald E. Smith and Mary S. Mercer, ¹ tenants in common of a tract of land in the City of Rock Hill known as the Royal Oaks Subdivision, sued Robert B. Phillips, Andrew F. Phillips, and Opal B. Phillips, tenants in common of the tract bordering Royal Oaks on the south. The complaint alleged causes of action for interference with a prescriptive easement, private nuisance, and trespass. It sought both injunctive relief and actual and punitive damages. The Phillipses answered, denying the material allegations of the complaint and counterclaimed for unlawful discharge of surface water on their land. They sought actual and punitive damages and injunctive relief. The legal claims for damages were tried to a jury. At the close of the evidence, the court found that Smith had a legal right to discharge surface water onto the Phillipses' land and that there was no evidence Smith had discharged surface water in a concentrated form so as to create a nuisance. Consequently, the court directed a verdict against the Phillipses on their counterclaim. The court submitted the Smith claims for trespass and nuisance to the jury. The jury returned a verdict for the Phillipses on the trespass causes of action. On the nuisance causes of action their verdict was: "for the Plaintiffs [Smith] actual damages in the sum of no Dollars." The court accepted the verdicts and then enjoined the Phillipses to abate the alleged nuisance by removing certain structures from their land and restoring it to its former condition. The Phillipses appeal. We reverse and remand.

The Smith property, Royal Oaks, bounds the Phillipses' property on the north. Both tracts lie within an eighty-eight acre natural drainage basin over which a number of watercourses flow. These are fed by underground springs and surface water flowing from the upper reaches of the drainage basin through Royal Oaks and onto the Phillipses' tract. In the 1950's, a pond was constructed on the Royal Oaks tract. The pond collects surface water and discharges it through a manmade drainage system whence it continues flowing onto the Phillipses property. In 1970, the Phillipses also built a pond, lower in elevation than the Royal Oaks pond, on their land.

Smith began construction on the Royal Oaks tract in March, 1988. Among other things, Smith reduced the surface area of the Royal Oaks pond by almost one half, but excavated it to a greater depth so that it held about the same volume of water. He installed storm water culverts and pipes, some of which directed water into the Royal Oaks pond and others of which discharged water below the Royal Oaks pond, 100 feet north of the Phillipses' tract. Smith also built a new spillway and weir to disperse water as it overflowed the pond. He placed rip-rap rock at the points of discharge of the new drainage pipes south of the Royal Oaks pond to disperse the concentration of water being discharged before it reached the Phillipses' tract. Finally, Smith built a three foot ditch under the driveway entrance to Royal Oaks along Quiet Acres Road. This ditch discharged surface water onto a Royal Oaks lot before it flowed onto the Phillipses' tract. The completed Royal Oaks drainage system admittedly increased the flow of surface water by about 15% in volume. Uncontradicted evidence established that the Royal Oaks construction was done in compliance with all regulations of the City of Rock Hill and the South Carolina Department of Health and Environmental Control, and was done according to good engineering standards.

In response to the construction on the Royal Oaks tract, the Phillipses raised the level of their pond so that it backed water onto Royal Oaks. In August, 1988, the Phillipses also began to construct an earthen berm along their boundary with Royal Oaks to prevent the flow of surface water onto their property from the drainage ditch along Quiet Acres Road. This caused surface water to back up and pond on Royal Oaks near the entrance to the subdivision. In March, 1989, the Phillipses began building up the causeway across their pond, eventually raising its height as much as twelve feet and blocking a fifteen inch drain pipe through the causeway so that surface water could no longer flow downstream. This caused water to back onto Royal Oaks, flooding the land south of the Royal Oaks pond, the weir and discharge pipes, the rip-rap, and five lots around the pond. The backed up water was stagnant and became a breeding ground for mosquitos.

The appeal presents two questions for our decision: (1) Did the court err in directing a verdict on the Phillipses' counterclaim because the evidence was susceptible of more than one reasonable inference? (2) Did the court err in granting injunctive relief to Smith on a jury verdict for "no dollars"?

I.

The parties agree that South Carolina follows the English common law (or so called "common enemy" rule) regarding diversion of surface waters naturally flowing across land. In the leading case of Baltzeger v. Carolina Midland Ry. Co., 54 S.C. 242, 32 S.E. 358, 71 Am.St.Rep. 789 (1899), ² the Supreme Court held that under the English rule the right of the owner of land to improve it, by changing its surface or erecting buildings and other structures on it, is not restricted merely because the improvement will cause surface water which naturally flows or accumulates on his land either to stand in unusual quantities on his neighbor's adjacent lands or to pass onto and over them in greater quantities and in other directions than it was accustomed to flow. The Court went on to say it is not material whether a party obstructs or changes the direction and flow of surface water by preventing it from coming within the limits of his land or by erecting barriers or changing the level of the soil so as to turn it off in a new course after it has come within his boundaries. The obstruction of surface water, or an alteration in its flow, affords no cause of action to a person who suffers loss or detriment therefrom against one who does not act inconsistent with the lawful exercise of dominion over his own soil. ³ The law expects every landowner to anticipate uses being made of adjoining lands consistent with law, even though unpleasant and harmful to him, and to prevent that possibility by extending his domain or to indemnify himself against it by seeking to abate the price when he purchases his land. McLauchlin v. Charlotte & South Carolina R.R. Co., 39 S.C.L. (5 Rich.) 583 (1850).

The "common enemy" rule does not apply in two types of cases. First, the rule is subject to the general law of nuisance. Thus, if the obstruction or alteration of the flow of surface water creates a nuisance, it does not come within the rule. See Baltzeger v. Carolina Midland Ry. Co., 54 S.C. 242, 32 S.E. 358, 71 Am.St.Rep. 789 (1899). Second, except by contractual or prescriptive right, ⁴ an upper landowner may not by means of a ditch, impoundment, or other artificial structure collect surface water on his land and cast it in concentrated form upon lower adjoining land. See Brandenburg v. Zeigler, 62 S.C. 18, 39 S.E. 790, 55 L.R.A. 414, 89 Am.St.Rep. 887 (1901); Slater v. Price, 96 S.C. 245, 80 S.E. 372 (1913).

In this case, the circuit court granted the directed verdict against the Phillipses after finding Smith had a right to discharge surface water onto their land and also finding there was no evidence Smith discharged water in concentrated form or so as to create a nuisance. In ruling on a motion for a directed verdict, the court must view the evidence and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. See Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797 (Ct.App.1991), cert. denied, (S.C.Sup.Ct. filed Feb. 4, 1992). If the evidence is susceptible of more than one reasonable inference, the court may not grant a directed verdict. See id.

We reverse the granting of the directed verdict. Since the case must be retried, we refrain from commenting on the evidence in detail. However, the evidence viewed in the light most favorable to the Phillipses permits a reasonable inference that Smith, by means of ditches and drainage structures he built on Royal Oaks, collected surface water on his land and cast it in concentrated form on the lower Phillipses' tract. In reaching this conclusion, we do not, of course, suggest the evidence preponderates one way or the other. We only find that some evidence exists to support the counterclaim on this issue. Thus, it was an issue for the jury, not for the court. See Standard Warehouse Co. v. Atlantic Coast Line R. Co., 222 S.C. 93, 71 S.E.2d 893 (1952).

If, as a matter of fact, Smith was discharging water in concentrated form on the Phillipses' land, then it would also be necessary to decide whether Smith had a right, by contract or prescription, to do so. We are confident the evidence did not establish--to the exclusion of any other inference--that Smith had a prescriptive right to concentrate and drain surface water onto the Phillipses' tract. We are equally confident the evidence did not prove--to the exclusion of any other inference--a contract between Smith and the Phillipses permitting Smith to discharge artificially concentrated surface water onto the lower tract. Consequently, the circuit court erred in...