Knight v. Sullivan Power Co.

• Decision Date: 08 July 1927
• Docket Number: 12232.
• Parties: KNIGHT v. SULLIVAN POWER CO.
• Court: South Carolina Supreme Court

138 S.E. 818

140 S.C. 296

KNIGHT v. SULLIVAN POWER CO.

No. 12232.

Supreme Court of South Carolina

July 8, 1927

Appeal from Common Pleas Circuit Court of Greenville County; J. H Johnson, Judge.

Action by J. E. Knight against the Sullivan Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Martin & Blythe, of Greenville, and Dial & Todd, of Laurens, for appellant.

Haynsworth & Haynsworth, of Greenville, for respondent.

STABLER J.

This is an action for damages for alleged injuries to real estate the property of plaintiff, by a dam erected and owned by the defendant company. The action was begun on June 19, 1918. The plaintiff alleged that he is the owner of 166 1/2 acres of land on Horse creek and Little Horse creek in Greenville and Laurens counties; that the defendant is a domestic corporation engaged in the business of generating electricity; and that prior to the time of the erection of the dam the waters of the creeks mentioned flowed in a free and unobstructed channel. The fifth paragraph of his complaint is as follows:

"That some time during the year 1911, the defendant commenced the erection of a dam at Tumbling Shoals, 2 1/2 miles below plaintiff's land, and completed same in 1912 and defendant has maintained same ever since, whereby defendant has obstructed the natural flow of sand and water in said creeks and raised the beds thereof; and has backed water and caused the channel of said creeks to fill up with sand, mud, and other deposits, and to overflow with water, sand, mud, and other deposits, approximately 60 acres of plaintiff's bottom land, lying on and between Horse creek and Little Horse creek in Greenville county, being a part of the land described in paragraph 1 of the complaint, whereby said land has been rendered utterly valueless and unfit for cultivation, to plaintiff's damage in the sum of $6,000."

The defendant admitted plaintiff's ownership of the land and its own corporate existence and business, but denied the other allegations of the complaint.

The case was tried by Judge Johnson and a jury on April 5-7, 1926. Evidence was adduced by the plaintiff tending to establish the disputed allegations of the complaint, and to show that, at the time of bringing the suit June, 1918, about 52 acres of defendant's land had been rendered completely worthless, by reason of its being covered with water and mud, and that such land could not be used even for pasturage. The plaintiff also introduced testimony tending to support a verdict for the full amount of damages asked for in the complaint.

Testimony for the defendant tended to show that the plaintiff's land had not been damaged in any manner by the erection of the dam, and that the damage, if any, was caused by obstructions in the channels of the streams between defendant's pond and plaintiff's land.

The jury rendered the following verdict: "We find for the plaintiff twelve hundred fifty dollars."

The appellant's exceptions, six in number, present two grounds of imputed error: (1) Error on the part of the trial judge in permitting the plaintiff's witness Nash to state his opinion as to the effect of ponding water upon streams and lands above the ponding water; and (2) error in charging that in assessing damages, if they found for the plaintiff, they might take into consideration as a part of the damages such interest as they thought should be allowed under the circumstances of the case.

As to the first ground of imputed error: When plaintiff's witness Nash was on the stand, the following colloquy took place:

"Q. Have you been surveying bottom lands on creek bottoms and things of that sort for many years? A. Yes, sir.

Q. Are you or not familiar with the effect of ponding water? A. Yes.

Q. As to what effect that has upon the creeks? A. I have some idea I would think.

Q. What is the effect of ponding water on the creeks and streams above the ponding water?

Mr. Blythe: I object to that. There are too many conditions that enter there upon which he is not familiar to express an opinion.

The Court: It is more or less a common knowledge of what ponding of water will do to streams.

Mr. Blythe: But he doesn't testify to any facts upon which the ponding of water affected this stream.

The Court: I think he can testify to that generally, if he is able to do so.

Q. What does it do? A. Well, ponding water, of course, will kill land.

Q. What effect does it have on the streams up above the backwater? A. Cause them to fill up.

Q. And state whether or not those conditions were occurring on this land when you surveyed it? A. Yes."

The appellant rests its objection to the admission of this testimony upon two grounds: (a) That the witness was not an expert, and (b) that the evidence sought to be introduced being the opinion of the witness, a sufficient foundation was not laid for its admission.

It is to be noted that the witness testified, under the ruling of the court, to the matters of fact, that he was familiar with the effect of the ponding of water upon streams above the backwater, such knowledge having been acquired by him from his observations and experience as a surveyor of bottom lands on creek bottoms over a period of years; that the ponding of water will kill land, and that its effect upon streams above the backwater is to cause them to fill up; and that these conditions were occurring upon the lands in question when he made a survey of them. We think, for the reason stated by the trial Judge, this testimony was admissible. Jones on Evidence (2d Ed.) p. 449, et seq.

If it be conceded, however, that the evidence sought to be introduced was merely the opinion of the witness as to the cause of the damage to plaintiff's land, we think that the facts and circumstances first stated by him formed a sufficient basis for the expression of such opinion. It is true that the general rule is, as contended by the appellant, that "the normal function of a witness is merely to state facts within his personal knowledge" (22 C.J. 485), but there are many and important exceptions to the rule. Jones on Evidence, supra.

The case of Hand v. Catawba Power Co., 90 S.C. 267, 73 S.E. 187, seems to be in point. In that case the defendant appealed to this court charging the trial court with error in permitting ordinary or nonexpert witnesses to give their opinion with respect to the effect of a dam on lands lying above it. The court said:

"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 opinion that defendant's dam caused plaintiff's injury. The 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

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