Slater v. Price

• Decision Date: 25 November 1913
• Parties: SLATER ET AL. v. PRICE ET AL.
• Court: South Carolina Supreme Court

80 S.E. 372

96 S.C. 245

SLATER ET AL. v. PRICE ET AL.

Supreme Court of South Carolina

November 25, 1913

Petition for Rehearing, December 15, 1913.

Appeal from Common Pleas Circuit Court of Darlington County; J. S Wilson, Judge.

Action by Wiley Slater and another against W. W. Price and Irving Price. From a judgment for plaintiffs, defendants appeal. Affirmed as to W. W. Price and conditionally affirmed as to Irving Price.

The defendants' exceptions were as follows:

"First. Because his honor erred in charging the jury as follows, as to the question of surface water: 'Second, it is an actionable injury for a person to collect surface water into an artificial channel and cause it to injure another's land. While you can protect your property from the injury done you by surface water, you do it for the protection of your property, and if you use legitimate means, you are not responsible if in doing that it hurts somebody else. But you can't collect it in concentrated form, so says the law, and then cause it to injure your neighbor'--the error being that his honor thus charged the jury that the mere collection of surface water would be an actionable injury, whereas such injury would not be actionable unless such surface water were collected and cast upon a neighbor's property in concentrated form so as to cause him damage. The mere collection of surface water upon one's own land, or causing the collection of it upon a neighbor's land, is not alone actionable even though injury should occur therefrom.

Second. His honor erred in charging the jury as follows in regard to the question of easement set up in the complaint and involved in the case: 'Or if some of your former grantors, persons who owned this land long before you did, had the right to go through there, cut a ditch through there, and the owners of the land through which this ditch goes allow it to stay open there, allow it to be used for 20 years or more without objection or trouble, for 20 years or more, then an easement is required through that land; then it cannot be stopped'--thereby charging the jury erroneously that the mere exercise of the right set forth, whether permissive or otherwise, for the period of 20 years would create an easement, whereas he should have charged that such an easement could not arise by a mere permissive right, but that the use must be adverse and continuous for the requisite period in order to create an easement.

Third. Because his honor erred in charging the jury as to the question of easement alleged in the complaint and involved in the case, as follows: 'If it is allowed to stay open for 20 years or more, it cannot be stopped without the party becoming liable for whatever injury it may cause the party off of whose land this ditch takes water'--the error being that his honor thus charged the jury that exercising a mere permissive right for a period of 20 years would create a liability against defendants if the ditch in question were stopped or discontinued by them whereas the use in order to create any liability on the part of defendants must have been adverse in character and continuous for the requisite period, and a mere permissive use could not create the easement contended for by plaintiffs.

Fourth. Because his honor erred in charging the jury, at the request of plaintiffs' attorney, as follows: 'Where one owned a piece of land originally drained by a ditch and sold off a portion through which the ditch drained, and it was necessary to drain that land, that the use of the ditch passed with the land'--the error being that, although it might be very necessary to drain the land, it might not be necessary to drain it by the particular ditch which the plaintiffs were claiming the right to use, and an easement or right to the use of the ditch could not be claimed in such case unless it was absolutely necessary to drain the water through that particular ditch.

Fifth. Because his honor erred in refusing defendants' motion for a new trial on the ground that there was no testimony whatever upon which to base a verdict against the defendant Irving Price, there being no testimony connecting him with any of the alleged matters set forth in the complaint, or that he had any connection with anything done by his codefendant in respect to the ditch in question, and his honor should accordingly have set aside the verdict and directed a new trial of the case.

Sixth. Because his honor erred in refusing defendants' motion for a new trial on the ground that there was no testimony upon which to base a verdict for damages: First, because there was no testimony offered by the plaintiffs to establish any amount of damages actually sustained, either as to lands referred to in the complaint or the crops thereon; second, because there was no testimony offered to establish the right to punitive damages as to either of the defendants."

Hydrick and Fraser, JJ., dissenting.

E. O. Woods and E. C. Dennis, both of Darlington, for appellants.

J. B. McLauchlin, of Columbia, for respondents.

WATTS J.

This was an action for damages by plaintiffs against the defendants. The complaint alleges that plaintiffs and defendants were owners of adjoining tracts of land, and that plaintiffs were damaged to the extent alleged in the complaint, to wit, $2,000, by reason of the defendants obstructing and shutting up a ditch which drained the surface water from the tract of land owned by the plaintiffs. Both of the tracts of land involved were originally owned by one Reynolds, and both the plaintiffs and defendants acquired their titles through transfers subsequent to the ownership by Reynolds of the entire tract. The cause was tried by Judge Wilson and a jury, and resulted in a verdict for the plaintiffs for damages in the sum of $100, and to re-open the ditch. A motion for a new trial was made on various grounds, which was overruled, and after entry of judgment defendants appealed, and asked reversal of the same. The exceptions should be set out in the report of the case.

Exception 1 complains of error on the part of his honor in charging the jury as to the question of surface water. We see no error in the judge's charge taken as a whole in reference to the matters complained of. There was some evidence tending to show that the obstruction of the ditch caused the water to be collected and thrown back on the lands of the plaintiffs, and that this obstruction, erected by the defendants, cast the water on the plaintiffs' land and prevented it from going in the ditch erected and maintained for the purpose of carrying it off. The evidence shows that both tracts of land at one time were one tract, and owned by one Reynolds, and the ditch was put there to drain the land. C. L. Reynolds testifies that the land was owned by his father; that he had known the land all his life; that at one time he owned the Price land, and that then his brother owned it; that the ditch had been there practically in the same place all of his life. It is true he does not say how old he is, but testifies he left the land in 1886, and that the ditch was there then. This action was commenced October 24, 1910, and the evidence shows that the ditch has been there over 23 years. There was evidence to go to the jury that this ditch had been there during the ownership of Reynolds of the entire tract, which land is now owned by the plaintiffs and defendants, that it was put there to drain the lands, and from that time it has been used for that purpose, and any interference by obstruction, constructed by the defendants to prevent the waters flowing in it from plaintiffs' lands and casting it back on plaintiffs' land so as to injuriously affect it, was to be determined by the jury, and we fail to see how what his honor told them in reference to surface water was prejudicial to the defendants, and it was not in conflict with the well-considered cases of Lawton v. South Bound R. Co., 61 S.C. 548, 39 S.E. 752, and Brandenburg v. Zeigler, 62 S.C. 21, 39 S.E. 790, 55 L. R. A. 414, 89 Am. St. Rep. 887. The defendants made no request of the court to more fully charge along this line. This exception is overruled.

Exceptions 2 and 3 complain of error on the part of his honor on the question of 26 years' use of the ditch in question would create an easement in the plaintiffs, even if such use was merely permissive. We think the appellant misapprehended the judge's charge. Take it as a whole, it is free from the errors complained of. There was evidence that the ditch had been in use over 20 years, without objection or hindrance from any one, and when plaintiffs established that by evidence, then the burden was shifted to the defendants to rebut that, or show such use was permissive merely. The judge charged, in substance, the law as laid down in the case of State v. Kendall, 54 S.C. 192, 32 S.E. 300, and State v. Tyler, 54 S.C. 295, 32 S.E. 422. He substantially charged the law applicable to the case; and, if appellant desired a more extended charge, it was his duty to embody his proposition in the form of a request. These exceptions are overruled.

Exception 4 alleges error on the part of his honor in charging the jury that if it was necessary to drain the lands of the plaintiffs, the use of the ditch in question passed with the lands. This exception must be overruled, as the trial judge in each case is allowed to charge the jury as to the law applicable to the points in issue made by the pleadings and evidence admitted in the case. There was no contention that the plaintiffs were attempting to drain their lands by trespassing upon or taking defendants' land, but their contention was that Reynolds, the original owner of the entire tract of land, put the ditch there to drain the entire tract, and...