Wallace v. Colombia & G. R. Co

• Decision Date: 09 February 1891
• Citation: 12 S.E. 815,34 S.C. 62
• Court: South Carolina Supreme Court
• Parties: Wallace v. Colombia & G. R. Co.

12 S.E. 815

34 S.C. 62

Wallace

v.Colombia & G. R. Co.

Supreme Court of South Carolina.

Feb. 9, 1891.

Railroads—Construction—Injury to Land-Owner.

A complaint in an action against a railroad company, which alleges that defendant, being the owner of a right of way through plaintiff's land, wrongfully erected an obstruction across the streams on said land, whereby it was flooded, to the great damage of plaintiff, does not state a cause of action, as it does not show that the obstruction was wanton or negligent, or that defendant could have constructed its road so as to avoid the injury complained of.

Appeal from common pleas circuit court of Fairfield county; Norton, Judge.

J. S. Colhruu and B. L. Abney, for appellant.

Ragsdale & Ragsdale and McDonald & Douglass, for respondent.

McIver, J. This was an action to recover damages alleged to have been caused by certain obstructions to the natural flow of certain streams of water running through plaintiff's land, by the erection of a dam over and across the same by the defendant, and also that defendant be required forthwith to remove said obstructions. An oral demurrer was interposed upon the ground that the com plaint did not state facts sufficient to constitute a cause of action, which being overruled, the case proceeded to trial, which resulted in a ver-dictin favorof the plaintiff for$2,300. The defendant gave due notice of appeal, alleging error in refusing to sustain the oral demurrer, and also in certain charges, and refusals to charge, as pointed out in the exceptions. Inasmuch as it does not appear in the "case" that any judgment has ever been entered on the verdict, the respondent insists that the only issue which can be considered here is that arising on the demurrer; there being no notice of appeal from any final judgment, although the notice of appeal which was given does state that it will also be based upon certain exceptions to the charge of the circuit judge. Under the view which we take of the demurrer, it will not be necessary to consider the technical point thus raised by respondent as to the form and scope of the appeal.

The sole question, therefore, which we propose to consider, is whether the complaint contains sufficient allegations of fact to constitute a cause of action in favor of the plaintiff against the defendant. These allegations are substantially as follows: That the defendant was a corporation duly organized under the laws of this state, and was the owner of a track or road-bed which passed through the lands of plaintiff; that the defendant was given the right of way through said lands; that plaintiff was the owner of a large body of land through which the waters of certain streams were accustomed to flow, and was entitled to the free and unobstructed flow of said waters in their natural channel; that in the year 1882 the defendant wrongfully erected a dam or obstruction in and across said streams, and has ever since maintained the same to a great height, and has thereby, during said time, obstructed and stopped the natural flow of said streams, and raised...