Johnson v. Williams, 17818

• Decision Date: 07 August 1961
• Docket Number: No. 17818,17818
• Citation: 121 S.E.2d 223,238 S.C. 623
• Parties: Mary Ella JOHNSON, Respondent, v. Lance WILLIAMS, Appellant.
• Court: South Carolina Supreme Court

Page 223

121 S.E.2d 223

238 S.C. 623

Mary Ella JOHNSON, Respondent, v. Lance WILLIAMS, Appellant.

No. 17818.

Supreme Court of South Carolina.

Aug. 7, 1961.

Norton & Norton, Marion, for appellant.

James B. Dixon, Marion, for respondent.

LEWIS, Justice.

The respondent and the appellant own adjoining lands and water from the lands of respondent and other upper landowners drained across the farm of the appellant. The appellant obstructed the flow of this drainage and the respondent brought this action to recover damages allegedly sustained when the obstruction created by appellant caused water to flood her lands during the years 1956 and 1957, and for a mandatory injunction requiring the appellant to remove the obstruction to the drainage.

The complaint of the respondent alleges that a ditch which has been in existence for many years, extends, across her land and the lands of appellant, serving to drain her lands and other upper landowners into Catfish Creek; that about 1944 the appellant and one of respondent's predecessors in title opened and enlarged this ditch in order to better drain their lands and other lands lying to the north; that about 1956 the appellant erected a dam across the ditch, leaving in the ditch a thirty inch culvert which was insufficient to carry the drainage for the area, thereby causing water to overflow three-fourths of respondent's land and damaging it for two crop years; and that, about the same time, appellant dug lateral ditches to drain parts of his land and in doing so drove a dragline machine across respondent's property, piled clay from the digging thereon, and left it there. The complaint sought both actual and punitive damages and a mandatory injunction requiring the appellant to remove the obstruction to the drainage.

By way of defense, the appellant alleged that the water coming upon his land from that of respondent was surface water and that he had a right to keep it from being cast upon his land; that any damage sustained by respondent from the flooding of her land wad due to the concentration and casting of surface waters upon her property by an upper landowner; that respondent's own negligence contributed to any damages which she might have sustained; and that any damages suffered by respondent were due to excessive and disastrous rains falling in the area during the years in question, amounting to an Act of God. The appellant admitted that, in digging lateral ditches on his land, one of the machine operators placed several piles of clay on respondent's land.

Upon the trial of the case appellant made timely motions for a nonsuit and directed verdict in his favor, which were refused. The Court submitted all issues to the jury with instructions that a verdict for actual damages could only be returned for a nominal amount. The jury decided the issues against appellant and returned a verdict for respondent in the sum of $750, actual damages. Appellant then moved for judgment in his favor notwithstanding the verdict and, in the alternative, for a new trial. The motions for judgment notwithstanding the verdict and for a new trial were refused, except to the extent of reducing the amount of the verdict to the sum of $100. In the order refusing the foregoing motions the Court issued a mandatory injunction requiring the appellant to forthwith remove the obstructions placed by him to the normal flow of water from respondent's land. This appeal followed and charges error in (1) the refusal of the Court to grant appellant's motion for a directed verdict, (2) the refusal of his alternative motion for a new trial, and (3) the issuance by the Court of the mandatory injunction.

The first question to be decided is whether or not the trial judge erred in refusing appellant's motion for a directed verdict. The motion for a directed verdict was made upon the grounds, that (1) there was no allegation in the complaint that the water of which respondent complained was anything other than surface water, (2) the only reasonable inference to be drawn from all of the testimony was that only surface waters were involved, from which he had a right to protect his property, (3) the respondent had proven no damages to her property, and (4) if respondent suffered any damages, they were the result of an Act of God or the result of the acts of an upper landowner in casting surface water upon her lands.

Before considering other questions arising under appellant's motion for a directed verdict, it is necessary to discuss his contention that there was no issue in the case as to whether the drainway in question was a natural watercourse. The basic issue on the trial of this case was whether or not the drainway across the lands of respondent and appellant was a natural watercourse. The respondent contended that it was, while the appellant took the position that only surface waters were involved. It is the position of the appellant that the complaint does not allege that the drainway in question was a natural watercourse and, therefore, the question of whether or not he obstructed such a watercourse is not an issue in the case. We think that the trial Court properly ruled that such was an issue. It is true that the complaint contained no allegations as to whether the water complained of was surface water or water contained in a natural waterway, but appellant made no motion, objection by demurrer, or otherwise to the complaint. Testimony was introduced to sustain respondent's position, without objection by the appellant, and this question was raised by appellant for the first time on motion for a nonsuit.

If appellant desired to have the complaint state the character of the waterway which had been obstructed, he should have moved to make the complaint more definite and certain in this particular. Rentz v. Southern Railway Co., 82 S.C 170, 63 S.E. 743. Failing to so move and testimony being introduced at the trial, without objection, tending to show that the waterway obstructed by appellant was a natural watercourse, this became an issue in the case. Taylor v. Winnsboro Mills, 146 S.C. 28, 143 S.E. 474; National Loan & Exchange Bank of Columbia v. Argo Development Co., 141 S.C. 72, 139 S.E. 183.

The case of Fairey v. Southern Railway Co., 162 S.C. 129, 160 S.E. 274, relied upon by the appellant involved a different situation. The testimony introduced in that case concerned only the right of the plaintiff to recover for damages caused from the obstruction of surface water. There was no testimony as to a natural watercourse and the question presented here was not considered.

In considering the refusal to grant the motion for a directed verdict on the other grounds urged, it is necessary to review the testimony and, in doing so, we are required to consider the evidence and the reasonable inference to be drawn therefrom in the light most favorable to the plaintiff-respondent. All factual issues have been concluded against appellant by the jury and we are only concerned with whether there is any competent evidence to sustain such findings. Our statement of the testimony will be so limited.

The respondent and the appellant own adjoining farms. The farm of respondent contains approximately 38 acres and that of appellant approximately 352 acres. The lands lie generally between an area known as Gum Swamp Bay to the north and Catfish Creek to the south. The natural drainage in the area is from north to south, from Gum Swamp Bay to Catfish Creek. Connecting Gum Swamp Bay and Catfish Creek is a low area referred to on the plats and in the testimony as Gum Swamp running across the properties of both the respondent and the appellant. Gum Swamp is a rather wide, damp, low area. Proceeding from Gum Swamp Bay south to Catfish Creek, the first property is that of a State Highway running east and west, next is the right of way of the Atlantic Coast Line Railroad lying parallel to the highway, then the property of respondent adjacent to the railroad, and finally the property of appellant.

Gum Swamp Bay is a natural depression and contains approximately 2700 acres in its watershed. Water collecting in the bay has two natural outlets to escape, one of which is through Gum Swamp. In dry weather it holds no water but, when it rains, water collects in large quantities in the bay, a part of which drains with the natural topography of the land under the highway and railroad, through Gum Swamp, and across the lands of the respondent and appellant into Catfish Creek. The flow of the water, from the Bay into Catfish Creek, created through Gum Swamp, across the lands in question, a branch which would become dry in dry weather, but carried the water from Gum Swamp Bay to Catfish Creek at other seasons. While the width of this branch is not given, it is delineated on the plats in evidence and was sufficiently outlined to be identified by an engineer who testified for respondent as the drainway through Gum Swamp for waters coming into the area from Gum Swamp Bay, although the testimony shows that at times the water passing through Gum Swamp was sufficient to spread out over a rather wide area. There is testimony that Gum Swamp is a natural drainway and the only one for the area in question into Catfish Creek.

The foregoing was the natural drainage situation in the area before the establishment of a canal through Gum Swamp.

The respondent purchased her property in 1954. Some years prior to 1954, the appellant dug a large canal from the respondent's property line to Catfish Creek through the area referred to as Gum Swamp. The appellant testified that he gave permission to respondent's predecessor in title to drain his land into the canal dug by him and, pursuant thereto, respondent's predecessor in title dug a canal from the railroad right of way across his property, now belonging to respondent, through Gum Swamp to connect with appellant's canal at the property line. These canals, when completed, formed a...