Lawton v. South Bound R. Co.

• Decision Date: 20 September 1901
• Citation: 39 S.E. 752,61 S.C. 548
• Parties: LAWTON v. SOUTH BOUND R. CO.
• Court: South Carolina Supreme Court

39 S.E. 752

61 S.C. 548

LAWTON v. SOUTH BOUND R. CO.

Supreme Court of South Carolina

September 20, 1901

Syllabus by the Court.

Appeal from common pleas circuit court of Hampton county; Townsend Judge.

Action by W. H. Lawton against the South Bound Railroad Company. From a judgment sustaining a demurrer to the complaint plaintiff appeals. Affirmed, with leave to amend.

W. S. Smith, for appellant.

C. J. C. Hutson and James W. Moore, for respondent.

McIVER C.J. (after stating the facts).

Inasmuch as the question presented by this appeal arises under a demurrer to the complaint upon the ground that the facts stated therein are not sufficient to constitute a cause of action, the reporter will incorporate in his report of the case a copy of the complaint, omitting the title, the first paragraph, and the prayer for relief, which contain nothing material to the question presented. The demurrer was sustained by his honor Judge Townsend in a short order, not assigning any reasons for his conclusion. From the judgment sustaining the demurrer the plaintiff appeals upon the several grounds set out in the record, which will likewise be incorporated in the report, omitting the formal parts.

Substantially, the complaint alleges that the plaintiff is the owner of a large tract of land situate in the county of Hampton, state of South Carolina, over and through which the track of the defendant's railroad runs; that on or about the 15th of May, 1897, the defendant "caused an embankment to be erected near the thirty-eight mile post on said railroad, in Hampton county, S. C., and a ditch to be filled in which had been of [here some word or words have been omitted which we cannot undertake to supply by conjecture merely] for a period of thirty or forty years, and by the erection of said embankment and filling in of said ditch has cut off the natural drainage of a large part of plaintiff's lands"; that defendant was notified not to place the said embankment so as to obstruct the natural drainage of plaintiff's lands, and after the embankment was constructed under protest of plaintiff, defendant was notified of the damage it was doing to the plaintiff, and refused to remove the same or to make a proper opening; that, before said embankment was thrown up and said ditch was filled in, plaintiff's lands were good planting lands and now they are so sobbed with water caused by the obstruction aforesaid that they are worthless for planting lands. Before passing upon the specific exceptions upon which this appeal is based, it will be well to lay down certain fundamental and well-established principles applicable to cases of this kind.

The obstruction of the flow of surface water and the waters of a natural water course are two distinct and very different things, and are attended by entirely different consequences. The former is not actionable, while the latter, if resulting in damage to an adjoining land proprietor, is actionable. In this state, at least, it is well settled that the common-law rule prevails, and that surface water is regarded as a common enemy, which each landed proprietor may keep off his own premises, even though by so doing he may throw or keep it on his neighbor's premises. Edwards v. Railroad Co., 39 S.C. 472, 18 S.E. 58, 22 L. R. A. 246, 39 Am St. Rep. 746, and Baltzeger v. Railway Co., 54 S.C. 242, 32 S.E. 358,--especially the latter, where Mr. Justice Gary goes more fully into the question than was done in the former case. And in this respect a railroad company stands upon the same footing as an individual landed proprietor. 24 Am. & Eng. Enc. Law, 950; Edwards v. Railroad Co., supra. It is material, therefore, to inquire first what was the character of the water which the defendant was charged with obstructing. Was it surface water, or the water of a natural water course? To determine this question, it is necessary to ascertain the characteristics of these two kinds of waters, and what are the tests by which the one may be distinguished from the other. In 24 Am. & Eng. Enc. Law, at page 896, it is said: "Surface waters are waters of a casual and vagrant character, which ooze through the soil or diffuse or squander themselves over the surface, following no definite course. They are waters which, though customarily and naturally flowing in a known direction and course, have nevertheless no banks or channels in the soil, and include waters which are diffused over the surface of the ground, and are derived from rains and melting snows; occasional outbursts of water, which in time of freshet or melting of snows descend from the mountains and inundate the country; and the moisture of wet, spongy, springy, or boggy ground." And on the next page of the same valuable work it is said: "The distinguishing features of surface waters are purely negative, and consist in the absence of the distinguishing features which are common to all water courses. Hence it is that the courts have not attempted to give any complete and full definition of surface waters. The question that has arisen has usually been whether the water in question was surface water or was a stream or water course. If it has the characteristics of a water course, it is usually treated as such, and is governed by the rules of law applicable to water courses. If the characteristics of a water course are absent, it is usually treated as surface water, and is governed by the rules of law applicable to surface waters. To constitute a water course, there...