Touchberry v. Northwestern R. Co.

• Citation: 69 S.E. 877,87 S.C. 415
• Parties: TOUCHBERRY v. NORTHWESTERN R. CO.
• Decision Date: 07 January 1911
• Court: South Carolina Supreme Court

69 S.E. 877

87 S.C. 415

TOUCHBERRY v. NORTHWESTERN R. CO.

Supreme Court of South Carolina

January 7, 1911

Appeal from Common Pleas Circuit Court of Clarendon County; Thos. S Sease, Judge.

Action by J. W. Touchberry against the Northwestern Railroad Company of South Carolina. Judgment for plaintiff, and defendant appeals. Affirmed.

Joseph F. Rhame and Purdy & O'Bryan, for appellant. Charlton Du Rant, for respondent.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff on account of the overflowing of his lands by the defendant.

The jury rendered a verdict in favor of the plaintiff for $500 actual damages, and the defendant appealed upon exceptions which will be incorporated in the report of the case.

The appellant's attorneys did not argue the first exception and therefore it might very properly be considered as abandoned; but waiving such objection, it cannot be sustained, as it is without merit. The second and third exceptions will be considered together.

The second exception assigns error, in that his honor, the presiding judge, charged the jury, as follows: "The railroad has a right to obstruct any kind of water course, natural or artificial, in the construction, maintenance, operation, and repairs of its roadbed, if it does this in a way that is not negligent, as I will define negligence to you later on." And the third exception assigns error in charging the following request, submitted by the plaintiff's attorneys: "The defendant, railroad company, has a right to obstruct the flow of water courses and of surface water, provided its road is not negligently constructed; but if the road is negligently constructed, and as a result of this negligence, water is dammed up and thrown back on the plaintiff's land, and injures it, the defendant is liable for such injuries ."

In the case of Lawton v. Ry., 61 S.C. 548, 39 S.E. 752, that great jurist, Mr. Chief Justice McIver, thus states the rule in this state, as to surface water: "The obstruction of the flow of surface water, and the waters of a natural water course, are two distinct and very different things, and are attended by entirely different consequences. The former is not actionable, while the latter, if resulting in damage to an adjoining land proprietor, is actionable. In this state, at least, it is well settled, that the common-law rule prevails, and that surface water is regarded as a common enemy, which each landed proprietor may keep off his own premises, even though, by so doing, he may throw or keep it on his neighbor's premises"--citing Edwards v. Ry., 39 S.C. 472, 18 S.E. 58, 22 L. R. A. 246, 39 Am. St. Rep. 746, and Baltzeger v. Railway, 54 S.C. 242, 32 S.E. 358, 71 Am. St. Rep. 789.

In a note to the case of Gray v. McWilliams, 21 L. R. A., on page 593, the rule of the common law is thus stated: "The gist of the so-called common-law rule is, that one may do as he pleases with his property, regardless of the effect upon surface water. This rule recognizes the right of each proprietor to fight surface water. Jones v. Hannovan, 55 Mo. 462. And the result is that, if carried to its ultimate conclusion, it simply means that the courts will recognize no wrong in any action undertaken for the purpose of getting rid of surface water, so that neither its detention, diversion nor repulsion, is an actionable injury, even though damage ensue. Bowlsby v. Spear, 31 N. J. Law, 351, 86 Am. Dec. 216." The foregoing language is quoted with approval in Blatzeger v. Ry., 54 S.C. 242, 32 S.E. 358, 71 Am. St. Rep. 789.

There are only two exceptions to the rule that, surface water being a common enemy, every landowner may use such means as he may see fit, in dealing with it: (1) "It is subject to the general law in regard to nuissances, if its accumulation has become a nuisance per se, as, for example, whether it has become dangerous at all times, and under all circumstances to life, health, or property." ...