Milhous v. State Highway Dept.

• Decision Date: 07 May 1940
• Docket Number: 15080.
• Parties: MILHOUS v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

8 S.E.2d 852

194 S.C. 33

MILHOUS v. STATE HIGHWAY DEPARTMENT.

No. 15080.

Supreme Court of South Carolina

May 7, 1940

John M. Daniel, Atty. Gen., and J. Ivey Humphrey and M. J. Hough Asst. Attys. Gen., for appellant.

Crum & Crum, of Denmark, for respondent.

STUKES Justice.

This action was brought by the respondent against the State Highway Department plainly under the rule of Chick Springs Water Co. v. Highway Department, 159 S.C. 481 492, 157 S.E. 842, 850, for the sum of $5,000 and resulted in a verdict for $1,250 which the lower Court refused to set aside, and also refused to grant a new trial upon grounds hereinafter alluded to. From the judgment entered thereupon this appeal was taken upon several exceptions which raise the points, briefly stated, that the alleged taking of the property of the plaintiff for public use resulted from damage thereto by surface waters only, which defendant had a right to "fight off" of its right-of-way which had been acquired from the plaintiff by condemnation and which it had the right to protect from surface waters as an individual would have, that the Trial Judge erred in his instructions to the jury in that he charged in several particulars upon the facts and confused the jury, and that the amount of the verdict was excessive under the testimony and should have been set aside or reduced by means of an order for new trial.

The questions so raised by the exceptions which were appropriate therefor were included in grounds for motions for directed verdict and new trial, and therefore are properly before this Court and will be disposed of herein.

It is alleged in the complaint that the respondent is the owner of a tract of 899 acres of land in Bamberg County through which State Highway No. 33 was reconstructed and hard surfaced in 1937 largely upon the old location, that theretofore respondent had a series of ditches alongside and openings through the road which drained his lands satisfactorily, but that the reconstruction of the road by the appellant included the raising of the grade of the roadbed, which the witnesses for the appellant admitted in testimony but stated that such increased elevation was less than that alleged; that there also formerly existed a large pit near the road which served as a temporary reservoir for surplus rainfall, which pit was filled, as were former ditches, the latter having been replaced by the appellant with other ditches and piping alleged to be insufficient to provide as effective drainage as respondent previously had, with the result that portions of the land are submerged and other portions inadequately drained with resulting permanent injury to the land abandonment of some of it and diminished productivity of other of it, all of which is alleged to constitute a taking of private property of the respondent by the appellant for public purposes without just compensation in violation of the provisions of the State and Federal Constitutions. The answer contains a general denial, except that the highway was constructed pursuant to statutory authority, that a right-of-way was obtained from respondent for such construction as the result of two condemnations in which the awards aggregated $250, duly paid to respondent, and from which he took no appeal; and that the highest degree of care was exercised in the grading of the road and the drainage thereof so as to care for the waters falling on the highway and on the respondent's adjoining land, so that such adjoining property has been benfited.

The somewhat similar case of Chick Springs v. Highway Department, supra, in which the cause of action was sustained, involved the alleged insufficient provision by the Department for the flow of a natural water course which a highway crossed, with the result that the land of the plaintiff in that action was damaged. The late eminent Justice Cothran, speaking for this Court, concluded thus: "This protection [action by the property owner] is afforded to the humblest citizen by the Constitutions of the state and the United States, and neither government can itself or by any statute or through any agency take property without paying compensation. 'Immunity from suit' cannot avail in this instance, and, if no statute exists, liability still exists, because as to this provision the Constitutions are self-executing." He further made reference to the case of Faust v. Richland County, infra, to the effect that this Court went further there than was necessary to go in the Chick Springs case for in the former case the holding was "that, notwithstanding the right of the county to fight back surface water from its property, in the exercise of a time-honored right, it could only do so without injuring the plaintiff's property. In the case at bar [Chick Springs] there is no suggestion that the defendant was exercising a legal right". Closely following the Chick Springs case and ruled by it was Greene v. Highway Department, 160 S.C. 132, 158 S.E. 159. It involved substantially the facts alleged here but the questions that are now presented were not raised in that case.

The provision of our Constitution of 1895, held by the foregoing authorities to be self-executing, and under which respondent brings this action is Section 17 of Article 1: "Private property shall not be taken *** for public use without just compensation being first made therefor." Cited with approval in the Chick Springs case, supra, with several cases from this Court to the same effect is the following from 10 R.C.L. 70: "There may be a taking of property in the constitutional sense although there has been no actual entry within its bounds and no artificial structure has been erected upon it. When a public agency acting under authority of statute uses land which it has lawfully acquired for public purposes in such a way that neighboring real estate, belonging to a private owner, is actually invaded by superinduced additions of water, earth, sand or other material so as effectually to destroy or impair its usefulness, there is a taking within the meaning of the constitution."

There is no need to encumber this opinion with a reference to the earlier authorities which were carefully reviewed in the Chick Springs decision or the subsequent similar cases to one of which reference is made above. Greene v. Highway Department, supra.

The positions taken by the appellant in the Circuit Court and its exceptions present the question of whether a governmental agency is liable under the provision of the Constitution above referred to for damage to private property, amounting to the taking thereof for a public purpose, by the obstruction of surface waters; and appellant asserts that the State should be held to liability therefor only as would an individual or private corporation, which liability appellant asserts exists, under the law of this State, only when surface waters, the result of rain and snow fall, as distinguished from a natural water course, are impounded or collected and thrown with force upon the land of another. Thus appellant argues that the State may raise the elevation of a roadbed for construction or improvement purposes without liability for damage to the land of an adjoining owner caused by the resulting obstruction of the natural flow of the surface waters, just as he contends a private owner may defend his property by a wall or other obstruction from the flow of surface waters from the lands of his neighbor. There is respectable authority in other jurisdictions for this position. It is well illustrated by the case of Jordan v. City of Benwood, 42 W.Va. 312, 26 S.E. 266, 36 L.R.A. 519, 57 Am.St.Rep. 859, but we are of the opinion that under the broad provision of our Constitution, quoted above, the liability sought to be established by the plaintiff in this action should exist where there is a "taking" whether it be by the obstructing of a stream as in Hopkins v. Clemson College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L.R.A.,N.S., 243, by the casting of surface waters in force and impounded quantities as appellant asserts was alleged in Faust v. Richland County, 117 S.C. 251, 109 S.E. 151, or as here alleged by the mere obstruction of the natural flow of surface waters. Certainly there can be no practical difference to the landowner whose property is taken or damaged and practically it is no less a "taking" whether it results from the one circumstance or the other.

At least some of the authorities in other jurisdictions which limit the liability of the sovereign for damage ("taking") by surface waters to the corresponding liability of an individual, Jordan v. City, supra, do so upon the ground that the cited constitutional provision removes the cloak of immunity from suit, creates no liability but merely refers the latter to the common law; but our established rule is to the contrary and can be best illustrated by the following quotation from the Chick Springs decision, supra: "From the above authorities it is indisputable that the constitutional provision quoted is self-executing, and, the Legislature having enacted no statute providing for the compensation guaranteed by the Constitution applicable to the facts of this case, an action at law will lie to recover such compensation."

Since the constitutional provision is not necessary to, and does not, afford the remedy, does not...