Overcash v. South Carolina Elec., 25990.

• Decision Date: 31 May 2005
• Docket Number: No. 25990.,25990.
• Court: South Carolina Supreme Court
• Parties: Karl Albert OVERCASH, III, Respondent, v. SOUTH CAROLINA ELECTRIC AND GAS COMPANY, Petitioner.

Page 619

614 S.E.2d 619

Karl Albert OVERCASH, III, Respondent, v. SOUTH CAROLINA ELECTRIC AND GAS COMPANY, Petitioner.

No. 25990.

Supreme Court of South Carolina.

Heard February 2, 2005.

Decided May 31, 2005.

Rehearing Denied July 8, 2005.

Robert A. McKenzie and Gary H. Johnson, II, of McDonald, McKenzie, Rubin, Miller,

and Lybrand, L.L.P., all of Columbia, for Petitioner.

A. Camden Lewis, of Lewis, Babcock & Hawkins, L.L.P., and Fred A. Walters, both of Columbia, for Respondent.

Justice BURNETT:

We granted a writ of certiorari to review the Court of Appeals' decision in Overcash v. South Carolina Electric & Gas Co., 356 S.C. 165, 588 S.E.2d 116 (2003). We reverse.

FACTUAL/PROCEDURAL HISTORY

Respondent Karl Albert Overcash, III (Overcash) brought this action seeking damages against Appellant South Carolina Electric & Gas Company (SCE & G) for the injuries he sustained, alleging, among other things, statutory and common law public nuisance. Overcash was severely injured when his boat collided with a dock owned by Sarah and Crawford Clarkson. Overcash alleges the dock connected the Clarkson's property to a small island more than 200 feet from their property and across the navigable waters of Lake Murray. Overcash further alleges SCE & G allowed the dock to be built, deeded the island to the Clarksons, and granted a post-construction permit for the dock.

The Clarksons settled the claims against them and are no longer a party to the suit. The circuit court granted SCE & G's motion to dismiss Overcash's public nuisance cause of action pursuant to Rule 12(b)(6), SCRCP, concluding: (1) personal injuries are not "special injuries" and thus cannot be the basis for a private action for public nuisance; and (2) a private cause of action for public nuisance does not exist pursuant to S.C.Code Ann. § 49-1-10 (1987).

The Court of Appeals reversed and remanded the case to circuit court concluding: (1) Overcash could maintain a common law cause of action under the doctrine of public nuisance for merely personal injuries; and (2) S.C.Code Ann. § 49-1-10 provides a private, statutory cause of action for public nuisance.

ISSUES

I. Did the Court of Appeals err in recognizing a common law cause of action under the doctrine of public nuisance for purely personal injuries?

II. Did the Court of Appeals err in holding S.C.Code Ann. § 49-1-10 provides a private, statutory cause of action for public nuisance?

LAW/ANALYSIS

A motion to dismiss a claim pursuant to Rule 12(b)(6), SCRCP, must be based solely on the allegations set forth on the face of the complaint. The motion will not be sustained if the facts alleged and the inferences reasonably deducible therefrom would entitle the plaintiff to relief on any theory of the case. Toussaint v. Ham, 292 S.C. 415, 416, 357 S.E.2d 8, 9 (1987). "[A] judgment on the pleadings is considered to be a drastic procedure by our courts." Russell v. City of Columbia, 305 S.C. 86, 89, 406 S.E.2d 338, 339 (1991). Therefore, pleadings in a case should be construed liberally and the Court must presume all well pled facts to be true so that substantial justice is done between the parties. Stroud v. Riddle, 260 S.C. 99, 102, 194 S.E.2d 235, 237 (1973).

I.

The Court of Appeals concluded Overcash's personal injuries constitute direct and special injuries, which support a private tort action for public nuisance. We decline to venture into what William Prosser has termed the "impenetrable jungle," electing instead to follow the well-beaten path to which South Carolina nuisance jurisprudence has long adhered. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser & Keeton on Torts § 86 at 616 (5th ed.1984). We reverse.

Under English common law, an action for nuisance was reserved for an interference with the use or enjoyment of rights in land. William L. Prosser, Private Action for Public Nuisance, 52 Va. L.Rev. 997 (1966). As noted by the Court of Appeals, modern nuisance law originates from the medieval English criminal writ of "purpresture." The earliest cases involved purprestures, encroachments upon the royal domain or the king's highway, and were redressed by the crown in a criminal proceeding. According to Prosser, "[t]here was sufficient superficial resemblance between the obstruction of a private right of way and the obstruction of a public right of passage to content the judges with calling the latter a nuisance as well." Id. at 998. Thus was born the public nuisance. Over time, the public nuisance doctrine has been expanded to cover other invasions of the rights of the general public including violations of the public order, decency, morals, and health. 58 Am.Jur.2d Nuisances § 39 (2002).

The dissent by Justice Fitzherbert in a 1536 King's Bench decision derailed the course of nuisance law as a branch of the common law, which once dealt only with harm to real property. Justice Fitzherbert argued against the contemporaneous understanding of the law in advocating an individual's action for special or particular damage, including personal injury, should be recognized under a cause of action for public nuisance. Y.B. Mich. 27 Hen. 8, f. 26, pl. 10 (1536). Although Justice Fitzherbert's view has been widely followed by other courts, we decline to recognize a common law cause of action under the doctrine of public nuisance for purely personal injuries.

South Carolina has avoided the uncertainty and confusion surrounding personal injuries in public nuisance actions. The cases in South Carolina concerning a private action for a public nuisance have involved an alleged damage to an individual's real or personal property as the "special injury" required to maintain an action for public nuisance. See e.g., Burrell v. Kirkland, 242 S.C. 201, 130 S.E.2d 470 (1963) (abutting landowner requested injunction for neighbors' obstruction of public road); Huggin v. Gaffney Dev. Co., 229 S.C. 340, 92 S.E.2d 883 (1956) (plaintiff sues for damages on alleged obstruction of public road alleging he was unable to obtain agricultural labor from a source at the opposite end of the road); Crosby v. Southern Ry. Co., 221 S.C. 135, 69 S.E.2d 209 (1952) (plaintiff alleged diminution in value of real property cause by blocked street).

This Court has never specifically concluded that an individual has a common law cause of action under the doctrine of public nuisance for purely personal injuries. The Court of Appeals relies on the decisions in Drews v. Burton & Co., 76 S.C. 362, 57 S.E. 176 (1907) and Carey v. Brooks, 19 S.C.L. 365, 1833 WL 1682 (Ct.App.1833). In Drews, the plaintiff brought an action for negligence arguing that a log from the defendant's mill drifted into navigable waters and damaged the plaintiff's schooner. In deciding the merits of the defendant's argument, the Court found that Section 1335 of the Code of Laws of 1902 provided that any person who obstructed a navigable waterway was guilty of nuisance. The Court, citing Carey, stated "[w]hen a person sustains a special injury ... arising from the obstruction of a navigable stream, he is entitled to recover damages, on the ground that such obstruction constitutes a nuisance under the statute, as well as at common law." Id. 76 S.C. at 366, 57 S.E. at 178.

The decision in Drews does not recognize a cause of action for purely personal injuries under a public nuisance theory. In Drews, the plaintiff alleged property damage to his schooner, not injuries to his person. We do not read the Court's holding to sanction an individual's recovery for personal injuries in a public nuisance action.

Likewise, the decision in Carey, did not involve personal injuries. In Carey, the plaintiff brought an action to recover for the obstruction of a navigable waterway, a public nuisance. The obstruction caused a delay in the delivery of the plaintiff's lumber to a third party, which resulted in damages. The court concluded if by such nuisance, a party suffers a particular damage, the plaintiff could recover. The Court of Appeals then recited Justice Fitzherbert's general illustration regarding corporeal hurt to the individual as constituting a "special injury."¹ We conclude the Court of Appeals rested its decision in large part on the dicta contained in this case. To the extent the decisions in Drews and Carey suggest we recognize a cause of action for purely personal injuries under the doctrine of public nuisance, we hereby overrule those cases.²

We conclude the special or particular injury requirement necessary for an individual to maintain a cause of action for public nuisance is satisfied only by injury to the individual's real or personal property. For the protection of the person, South Carolina has well developed tort-based doctrines which can redress wrongs resulting in personal injuries sustained by an individual. The addition of personal injury to public nuisance actions in South Carolina would perpetuate the erosion of any semblance of doctrinal consistency in the common law of nuisance. Therefore, we reverse.

II.

SCE & G argues the Court of Appeals erred in finding that a private right of action exists from a violation of S.C.Code Ann. § 49-1-10 (1987). We agree.

Section 49-1-10 provides the following:

... [A]ll navigable watercourses and cuts are hereby declared navigable streams and such streams shall be common highways and forever free.... If any person shall obstruct any such stream ..., such person shall be guilty of a nuisance and such obstruction may be abated as other public nuisances are by law.

The Court of Appeals improperly relied on Drews, 76 S.C. 362, 57 S.E. 176, and failed to look for intent on the part of the legislature to create a private cause of action. In Drews, the Court found that Section 1335 of the Code of Laws of 1902 provided that any person who obstructed a navigable waterway was guilty of a nuisance. The Court also stated in dicta that a person who sustains a special injury from the obstruction of...