Rivenbark v. Atl. Coast Line Ry. Co

• Decision Date: 10 April 1923
• Docket Number: (No. 11,178.)
• Parties: RIVENBARK v. ATLANTIC COAST LINE RY. CO.
• Court: South Carolina Supreme Court

117 S.E. 206

RIVENBARK

v.ATLANTIC COAST LINE RY. CO.

(No. 11, 178.)

Supreme Court of South Carolina.

April 10, 1923.

Fraser, J., dissenting.

Appeal from Common Pleas Circuit Court of Beaufort County; R. W. Memminger, Judge.

Action by T. J. Rivenbark against the Atlantic Coast Line Railway Company. From a judgment for plaintiff in the magistrate'scourt, affirmed by the circuit court, defendant appeals. Reversed and complaint dismissed.

W. J. Thomas, of Beaufort, for appellant.

Geo. W. Beckett, of Beaufort, and John P. Wise, of Ridgeland, for respondent.

MARION, J. Action for damages in a magistrate's court, based upon the following complaint:

"(1) That the plaintiff is a resident of the town of Hardeeville, in said county, and the defendant is a railway corporation having a line of railway passing through, and an office and agent in, the said county and state.

"(2) That plaintiff lives in the town of Hardeeville, on the line of the defendant's railroad, and is, and was at the time of the acts herein complained of, in possession of a garden, which he planted with vegetables in the spring of the year 1921.

"(3) That the natural drainage of the ground where the plaintiff planted his vegetables is on, towards, upon, and across the railroad right of way, but the defendant built and maintains an embankment on which to operate its trains, which embankment stops the natural drainage, and the said railway company, in order to carry away the surface water which naturally would flow over its right of way, constructed a ditch to lead off the surface water, which otherwise would be dammed up by said embankment, and would overflow and submerge the lands of the plaintiff on which he planted his said vegetable garden.

"(4) That the defendant, in utter disregard of the rights of the plaintiff, and in violation of its duty, allowed its drainage ditch to become stopped up and obstructed, and, although requested by the plaintiff to do so, refused and neglected to clean out and maintain the said ditch, thereby causing, in the months of June and July, 1921, the surface water to accumulate and overflow and submerge and flood the plaintiff's land and destroy the plaintiff's crops of collards, potatoes, peas, and strawberry plants, and other plants and vegetables, and converting plaintiff's land into a fish pond wherein catfish disported themselves, to plaintiff's damage in the sum of one hundred dollars."

The defendant demurred to this complaint upon the ground that it failed to state a cause of action, in that it showed upon its face that it was "an action brought against the defendant for neglect to clean out and maintain a ditch and for backing surface water on the land of the plaintiff." The demurrer was overruled.

Plaintiff testified:

"The natural drainage is across the railroad track. The right of way ditch runs within 4 or 5 feet of his garden. The town ditch drains into the railroad ditch. The railroad ditch was stopped up with cross-ties, which prevented the flow of water. I requested the ditch to be opened. * * * Rainwater drowned my garden. The nearest living stream is about three-quarters of a mile. The water that drowned my garden did not come from any stream of water, but flowed in when it rained. If the railroad ditch had not been stopped up, the water would not have damaged me. It was flooded generally around when it rained. There was not water there until a rainy time."

The magistrate found the facts substantially in accordance with the foregoing testimony, held that the conduct of the defendant in allowing the drainage ditch to become stopped up with cross-ties constituted actionable negligence, and rendered judgment for plaintiff in the sum of $100. The circuit judge affirmed the judgment of the magistrate, and the defendant appeals upon the exceptions, which allege in substance that neither the facts stated in the complaint nor the facts found by the magistrate and approved by the circuit judge are sufficient to support the plaintiff's recovery.

The legal rights and duties of a railroad company, in possession of real estate held and used by virtue of such title as gives it dominion and control thereof for the purpose of carrying on a lawful business, differ in no essential particular from the rights and duties of any other landed proprietor in the same circumstances or under like conditions. See Edwards v. Ry. Co., 39 S. C. 472, 18 S. E. 58, 22 L. R. A. 246, 39 Am. St. Rep. 746. So here any duty owed by the railroad to the plaintiff with respect to the use and maintenance of a ditch for the drainage of surface water on its premises is in contemplation of law the same duty that would have been owed by any other adjacent owner of the lower land, and is precisely the same duty that the plaintiff would have owed the railroad, if the situation of the parties had been reversed. In that view, a hypothetical statement of the case, with the positions of the parties reversed, may tend to clarify the issue. Suppose the plaintiff, the owner of the garden, were the lower proprietor, instead of the railroad, and had seen fit to fill up a drainage ditch, or allow it to become obstructed, or to take out tile drains, which he had previously maintained in good condition in his garden, as a result of which surface water was backed upon the railroad's premises, to the injury of the track and roadbed; would the railroad have had a cause of action for the consequential damages against the plaintiff? Clearly not, we think, under the common-law rule as to surface water prevailing in this state and applied by this court in numerous decisions.

The case at bar is closely assimilated to and is clearly ruled by the principles of law recognized and applied by this court in the following cases: Edwards v. Railway Co., 39 S. C. 472, 18 S. E. 58, 22 L. R. A. 246, 39 Am. St. Rep. 746; Baltzeger v. Railway Co., 54 S. C. 242, 32 S. E. 358, 71 Am. St. Rep. 789; Lawton v. Railroad Co., 61 S. C. 548, 39 S. E. 752; Johnson v. Railway Co., 71 S. C. 241, 50 S. E. 775, 110 Am. St Rep. 572; Touchberry v. Railroad Co., 83 S. C. 314, 65 S. E. 343; Id., 87 S. C. 415, 69 S. E. 877; Cannon v. Railroad Co., 97 S. C. 233, 81 S. E. 476. In the Touchberry Case, 87 S. C. at page 423, 69 S. E. at page 878, the present Chief Justice thus clearly and fully states the rule, with the recognized exceptions, announced and applied in the foregoing decisions, as follows:

"In the case of Lawton v. Railway, 61 S. C. 548, 39 S. E. 752, that great jurist, Mr. Chief Justice Mclver thus states the rule in this state,...