Rice Hope Plantation v. South Carolina Public Service Authority

• Decision Date: 18 April 1950
• Docket Number: 16343.
• Parties: RICE HOPE PLANTATION v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY.
• Court: South Carolina Supreme Court

59 S.E.2d 132

216 S.C. 500

RICE HOPE PLANTATION v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY.

No. 16343.

Supreme Court of South Carolina.

April 18, 1950

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

R. M. Jefferies, Walterboro, W. D. Simpson, Moncks Cornor, James B. Morrison, Georgetown, for appellant.

Buist & Buist, Charleston, Herbert L. Smith, Jr. Georgetown, for respondent.

L. D. LIDE, Acting Associate Judge.

This case comes before us upon the pleadings only. The defendant moved to strike out certain allegations of the complaint upon the ground that they are irrelevant, immaterial and redundant; and reserving, not waiving, its rights under the motion to strike, answered the complaint. Whereupon the plaintiff moved to strike out certain paragraphs of the answer upon the ground that they are irrelevant and immaterial; and also moved to require the defendant to make certain allegations of its answer more definite and certain. These motions came on to be heard before Judge Moss, who was then presiding in the Twelfth Circuit; and thereafter he handed down his order, dated April 20, 1949, wherein he overruled defendant's motion relating to the complaint, except in a minor particular, and wherein he granted plaintiff's motions to strike out certain paragraphs of the answer and to make more definite and certain some particular allegations thereof. From this order the defendant appeals to this Court.

While nothing was said on this point in the oral argument at the bar of this Court by counsel on either side, it appears in the brief of the respondent that while it is admitted that so much of the order of the Circuit Court as strikes out certain parts of the answer is subject to this interlocutory appeal, it is argued that otherwise the appeal is premature. Hence we must first determine the scope of the appeal. It is provided in Section 26, Code 1942, that the Supreme Court shall have appellate jurisdiction with regard to any intermediate judgment, order or decree in a law case involving the merits, in actions commenced in the Court of Common Pleas; and there is a further provision that the Supreme Court may upon appeal from a final judgment review any intermediate order or decree necessarily affecting the judgment and not before appealed from.

This Court in considering this section has generally and correctly held that orders refusing to strike out allegations in a pleading are not subject to interlocutory appeal, and that orders granting motions to make more definite and certain are not so appealable, unless the merits are involved. But the rationale of these decisions should be considered, and that is well stated in the case of Woods v. Rock Hill Fertilizer Co., 102 S.C. 442, 86 S.E. 817, 819, Ann.Cas.1917D, 1149, wherein it is said in the opinion delivered by Mr. Justice Hydrick: 'Appellee objects to the consideration of the appeal from the refusal of the court to strike out certain allegations of the complaint and to grant the motions for nonsuit and direction of the verdict, on the ground that the rulings and orders as to those matters are not appealable, until after final judgment. Ordinarily, that is so, and the objection would be well taken, if the appeal were based solely upon such matters. The reason of the rule is to prevent unnecessary delay in the trial of causes by appeals from interlocutory orders which may have no prejudicial effect upon the final judgment. But, as the order overruling the demurrer is appealable, the reason for the rule does not apply, and it will be better for both parties in the further progress of the case to have these questions decided.'

It will thus be seen that the Court in the cited case considered all matters involved in the appeal, because one of the orders before it was appealable; but also upon the ground that so to do was in furtherance of the interests of both parties. And a like conclusion has been reached by this Court in other cases. In the case of Miles v. Charleston Light & Water Co., 87 S.C. 254, 69 S.E. 292, 293, the Court had before it an appeal from an order relating to a demurrer, and also from an order denying a motion to require the plaintiff to make the complaint more definite, and it was held that the latter order was not appealable, but that the order upon the demurrer was, and hence the Court said, 'it is not deemed objectionable to consider the motion to make definite along with it.' And in the case of Waldrop v. M. & J. Finance Corp., 176 S.C. 490, 180 S.E. 555, an order refusing a motion to strike and overruling a demurrer was considered and reversed on appeal. See also Lentz v. Carolina Scenic Coach Lines, 208 S.C. 278, 38 S.E.2d 11.

It is manifest, in the case at bar, that the merits of the cause are involved in the order before the Court, and that it is indeed essential that all phases of the order be passed upon to avoid confusion in the trial of the cause in the Circuit Court, and that this will be better for both parties in the further progress of the case. We have here a single order from a part of which an appeal admittedly will lie, but it is manifest that the entire order should be considered upon this appeal; and the cases cited are sufficient to support this conclusion. Besides, the defendant's motion to strike out certain allegations in the complaint is clearly somewhat in the nature of a demurrer, for the complainant attempts to set up at least four separate causes of action mingled together, and the motion to strike seeks to eliminate allegations with reference to three of the causes of action attempted to be alleged. It is true that it would have been more technically correct for the defendant first to require the causes of action to be alleged separately, and then to interpose a demurrer in due form. But we do not think this is sufficient, under the circumstances of this case, to affect the duty of this Court to consider the appeal as it relates to the entire order of the Circuit Court.

This action was commenced in the Court of Common Pleas for Georgetown County on September 24, 1948, and the complaint alleges that the plaintiff, Rice Hope Plantation, which is a corporation, is the owner of a certain large tract of land on the lower Santee River, lying in part on the north or mainland shore of the North Santee River, and in part on the south or delta shore of the North Santee River; the delta being a large island, and a part of the plaintiff's property extends through the width of the delta to the South Santee River. And the complaint further alleges that the defendant constructed a dam on the Santee River above the plaintiff's property, which diverted into the Cooper River a large part of the normal flow of the fresh water Santee River, and that this in turn caused salt water from the ocean to invade the Santee River to and above the plaintiff's property, and to infiltrate into the streams, creeks, canals, ponds and drainways that run through this property; and the salting of these waters, both in the river itself and in its minor tributaries, is alleged to have damaged plaintiff's property and decreased its value.

And there are other allegations to the effect that since the construction of the defendant's dam the water in the creeks and watercourses occasionally overflows the normal high water mark of the streams by reason of release by the defendant of water through its dam in times of freshets or by reason of storm tides or other similar causes; and that the water that overflows the normal high water mark is strongly saline, and, while temporarily on the land, it kills and destroys vegetation, whenever such overflow immerses the same or causes the introduction of salt into the soil. The prayer of the complaint is for judgment in the sum of $85,000.

Counsel for the plaintiff, the respondent, herein, assert, and indeed the matter is referred to by Judge Moss in his order, that the plaintiff has woven into the complaint 'five theories of law, on any of which recovery can be had under the facts stated'. In other words, the plaintiff appears to claim that it has more than one cause of action, and presumably that these causes of action might be joined in the same complaint.

As we read the complaint, we think it is clear that it does properly allege a cause of action for the recovery by the plaintiff from the defendant, a governmental corporate agency, just compensation for the property of the plaintiff alleged to have been taken, pursuant to the provisions of the State Constitution in Article I, Section 17. See Chick Springs Water Co. v. State Highway Dept., 159 S.C. 481, 157 S.E. 842, and the many cases following it. But we are of the opinion that this is the only cause of action which is legally stated in the complaint, although there are allegations therein attempting to set up three other causes of action, to wit, a cause of action in tort, a cause of action under the Federal Power Act, 16 U.S.C.A. § 791a et seq., and a cause of action in quasicontract. The defendant's motion seeks to strike out the allegations relating specifically to these three claimed causes of action, and, as we have hereinbefore indicated, the motion may be considered as somewhat in the nature of a demurrer.

Defendant's Motion To Strike.

Briefly stated, the allegations sought to be stricken out of the complaint are as follows: (1) allegations of negligence and recklessness in paragraph 14; allegations of negligence in paragraph 22 (together with an allegation stricken out by Judge Moss); allegations in paragraph 27 charging the defendant with discrimination against the plaintiff in favor of other landowners on other rivers, by the construction of protecting engineering works, and by the payment to some of them of large sums of money...