Williams v. Skipper, 0367

• Decision Date: 20 November 1984
• Docket Number: No. 0367,0367
• Citation: 284 S.C. 261,325 S.E.2d 577
• Court: South Carolina Court of Appeals
• Parties: Ann Harris WILLIAMS, Appellant, v. James R. SKIPPER and Margaret S. Skipper, Respondents. . Heard

Page 577

325 S.E.2d 577

284 S.C. 261

Ann Harris WILLIAMS, Appellant, v. James R. SKIPPER and Margaret S. Skipper, Respondents.

No. 0367.

Court of Appeals of South Carolina.

Heard Nov. 20, 1984.

Decided Jan. 17, 1985.

J. Graham Sturgis, Jr., of Altman & Sturgis, P.A., Charleston, for appellant.

E. Lloyd Willcox, Charleston, for respondents.

En Banc.

PER CURIAM:

Appellant Ann Harris Williams appeals from the final order of Judge Louis Condon, Master in Equity for Charleston County, dismissing her action against respondents James and Margaret Skipper for damages and injunctive relief from their diversion of surface waters onto her property. We affirm the judgment entered.

The facts are stipulated. Both appellant and respondents own property located in Ocean View subdivision on the peninsula extending into Clark Sound on James Island, Charleston County. Respondents' lot is the last lot on the eastern tip of the peninsula and appellant's lots are adjacent to respondents' lot on its western side. The general flow of water on the peninsula is north and south into Clark Sound and down the slope of the peninsula from west to east into Clark Sound. Because respondents' lot is located at the terminus of the peninsula and is lower than appellant's adjacent lots, surface water which falls on both properties flows into a depression on respondents' lot and into the marshes of Clark Sound.

Appellant took title to her property in 1971 and resided there until 1976. Respondents purchased their lot in 1974. At that time, the lot had several large drainage ditches on it which were filled with water. In addition, approximately two-thirds of the lot lay under water. In 1976, respondents began transporting fill dirt onto their lot to raise its elevation so that a residence could be built on it. The fill ultimately elevated a part of the property to a point higher than the elevation of appellant's lots. The remaining portion is at the same level it was when respondents acquired the lot. Their house was built and they now reside in it.

Subsequent to the filling of respondents' lot, appellant began complaining of a condition of general bogginess on her lot which resulted in standing water, improper functioning of her septic tank drain field, increased wood rot about her premises and several other damaging side effects. She commenced this action in March, 1979, to recover her actual damages and to have respondents enjoined from creating a nuisance.

The master in equity first found that the appellant's damages, if any, were caused by surface water. Under the "common enemy" doctrine governing the disposal of surface water, the master held that the respondents had the right to take any measures necessary to protect their property against it, even if it resulted in damage to the appellant. Further, he found no evidence that the respondents' acts created a nuisance per se, one of the two exceptions to the common enemy doctrine. The master therefore dismissed the appellant's suit.

Prior to transferring the case to this Court, our Supreme Court granted appellant's petition to argue against precedent. Appellant therefore urges this Court to overrule the common enemy doctrine adopted in Edwards v. Charlotte, C. & A.R. Co., 39 S.C. 472, 18 S.E. 58 (1893), and subsequently applied in Baltzeger v. Carolina Midland Railway, 54 S.C. 242, 32 S.E. 358 (1899); Johnson v. Charleston & W.C. Railway, 71 S.C. 241, 50 S.E. 775 (1905); Banks v. Southern Railway, 126 S.C. 241, 118 S.E. 923 (1923); Rivenbark v. Atlantic Coast Line Ry., 124 S.C. 136, 117 S.E....