Brown v. Northwestern R. R., 70 S.E. 319

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70 S.E. 319 | S.C. | 1911

Lead Opinion

March 1, 1911. The opinion of the Court was delivered by 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 defendant demurred to the complaint on the ground that it did not state facts, sufficient to constitute a cause of action, in that it "charges only the damming up, and throwing back of surface water, which is not actionable, and as to which the defendant owes the plaintiff no duty." The demurrer was overruled. *29

The jury rendered a verdict in favor of the plaintiff for $250.00, and the defendant appealed upon exceptions, which will be reported.

The first question that will be considered is, whether there was error, on the part of his Honor, the presiding Judge, in overruling the demurrer, which is raised by the tenth and eleventh exceptions.

Paragraph IV, of the first cause of action, and paragraph V, of the second cause of action, set out in the complaint, allege that pond "B" contained spring as well as surface water, and was the head of a natural watercourse; also, that the defendant was negligent in constructing the roadbed through said pond.

In disposing of a similar question, the Court, in the case of Rentz v. Ry., 82 S.C. 170, 63 S.E. 743, used this language: "The demurrer of the defendant assumed that the pond was created by the accumulation of surface water. Ponds are created, not only by the accumulation of surface water, but by springs in the pond, and by small streams emptying into it, which have a continuous flow. The complaint leaves in doubt, the manner in which the pond was formed. His Honor, the presiding Judge, was right in overruling the demurrer, and in ruling that the proper remedy of the defendant was to have made a motion, to make the complaint definite and certain."

The cases of Wallace v. Ry., 34 S.C. 62, 12 S.E. 815;Lampley v. Ry., 71 S.C. 156, 50 S.E. 794; and Touchberry v. Ry., 83 S.C. 315, 65 S.E. 343, sustain the proposition, that even when a railroad corporation has the right to obstruct a watercourse, it is, nevertheless, liable for damages, if it is guilty of negligence. These exceptions are, therefore, overruled.

We proceed to the consideration of the first, second and third exceptions. *30

The general charge of the presiding Judge, the rulings upon the requests to charge, and the exceptions, are quite lengthy, and render it difficult to consider them in detail.

Our reasons, briefly and concisely stated, for overruling these exceptions, are, that when those portions of the charge set out in these exceptions are considered in connection with the entire charge, it will be seen that he clearly pointed out the difference between surface water and natural watercourses; and, we are satisfied, that when thus considered, it was not misleading.

In considering the fourth exception, we are unable to see, in what respect the modification was prejudicial to the rights of the appellant, and this exception, therefore, cannot be sustained.

In their argument, the appellant's attorneys do not discuss the fifth exception, further than to say: "We beg leave to refer to what we have already said in this connection, on the question of demurrer, without repeating it." We do not deem it necessary, to cite authorities to show, that this exception cannot be sustained.

The sixth exception must be overruled, for the reason that the testimony therein mentioned was admissible, at least, for the purpose of showing, that the defendant had knowledge of the fact, that it was injuring the lands of the plaintiff, in a manner alleged to be negligent, as the knowledge of the agent was received during a transaction pertaining to a matter, within the scope of its employment, and, therefore, imputable to his principal.

The seventh exception must be overruled, for the reason it does not appear, that objection was interposed to the introduction of the testimony therein set out, nor that it was prejudicial to the rights of the appellant.

The eighth exception is overruled, for the reason that the defendant failed to take action, although the *31 damaging condition of the pond and its surroundings were repeatedly brought to its attention.

The ninth exception is disposed of by what has already been said.

Affirmed.

Dissenting Opinion

I dissent on the ground that there was no evidence of wilfulness or wantonness, and the Circuit Court should have charged, as requested, that punitive damages could not be recovered.