Parks v. City Council of Greenville
| Decision Date | 16 April 1895 |
| Citation | 21 S.E. 540,44 S.C. 168 |
| Parties | PARKS v. CITY COUNCIL OF GREENVILLE et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Greenville county; Ernest Gary, Judge.
Action by John B. Parks against the city council of Greenville and others for damages alleged to have been sustained by the laying of a sewer pipe across plaintiff's lot. From a judgment for defendants, plaintiff appeals. Affirmed.
Perry & Heyward, for appellant.
Joseph A. McCullough, for respondents.
The plaintiff brought this action against the municipal corporation known and designated by the name of the "City Council of Greenville," and against the several individuals holding the offices of mayor and aldermen, and also the city engineer, to recover damages alleged to have been sustained by him by reason of the laying of a sewer pipe through a lot of land in the city of Greenville, the property of the plaintiff. The allegations contained in the complaint, omitting those which are of a formal character (such as relate to the corporate character of the first-named defendant, the names of the persons holding the offices of mayor and aldermen, the names of the persons composing the committee on sewer, the name of the city engineer, and the ownership of the lot of land, with the description thereof, alleged to be of the value of $300), are substantially as follows: That the said city engineer "in co-operation with and under instructions from the said committee on sewer, on or about the ___ of June, 1892 unlawfully, maliciously, and in willful disregard of the objections of the plaintiff, entered upon said premises, dug up the soil thereon, and laid through the entire length thereof certain terra-cotta piping, to be used as part of the sewer of said city of Greenville." The allegation in the sixth paragraph of the complaint is as follows: "That said sewer pipe is an offensive nuisance upon said premises well known to all the defendants so to be, and has practically destroyed the value of said premises." In the seventh paragraph of the complaint the allegation is as follows: "That the plaintiff has demanded of the defendants that said piping be removed from said premises, but the defendants have refused to remove the same, or any part thereof, have treated the applications and complaints of the plaintiff with contempt, and at a meeting of the said city council of Greenville, regularly held, the defendants, the mayor and aldermen above named, subsequently, by a unanimous vote, ratified and confirmed said unlawful conduct of the said James R. Lawrence [the city engineer] and said committee on sewer, and are now in possession of said sewer, operating and controlling the same." And in the eighth paragraph of the complaint it is alleged "that, by reason of the aforesaid unlawful and malicious conduct of the defendants, an outrage has been committed upon the plaintiff and his rights, and the value of his property destroyed, all to his damage one thousand dollars."
The defendants answered, admitting the corporate character of the first-named defendant, the names of the persons set forth in the complaint as the committee on sewer, that the said Lawrence was the city engineer, and that the plaintiff was the owner of the lot described in the complaint, but say that they do not know its size or value, but that they are informed and believe that it is not of the value ascribed to it in the complaint. They admit that the said city engineer did cause to be laid through a corner of plaintiff's lot a pipe, to be used as a part of the city sewer, but deny that such act was done "unlawfully, maliciously, and in willful disregard of the objections of the plaintiff," or that he has sustained any damage thereby. On the contrary, they allege that all the acts done by them were done as the representatives of the said municipal corporation, and under its direction, which corporation was expressly authorized to have done by certain statutes set up in the answer, the terms of which will hereinafter be more particularly referred to, and that all of such acts were done in conformity to such statutes; that when plaintiff refused to appoint one of the commissioners provided for by such statutes, for the purpose of assessing the damages which plaintiff might sustain by laying the pipe through his premises, such commissioner was designated by the chairman of the board of county commissioners, as provided for by such statutes, and when the commissioners made their assessment the amount thereof was duly tendered to plaintiff, who refused to receive the same.
The case came on for trial before his honor, Judge Ernest Gary and when the complaint was read, and before the answer was heard, a motion was made by counsel for defendants to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action against any...
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