April 22, 1914. The opinion of the Court was delivered by
This is an appeal from an order sustaining a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
Paragraphs 3 and 4 of the complaint, together with the grounds of demurrer, will be incorporated in the report of the case.
In the case of Lawton v. Railway, 61 S.C. 548,39 S.E. 752, where the allegations of the complaint were similar to those now under consideration, the rule as to surface water was thus stated: "There is no allegation that there was a `stream usually flowing in a particular direction.' nor is there any allegation that the water obstructed flowed `in a definite channel, having a bed, sides,
or bank,' nor is there any allegation that there was `any well-defined bed or channel with banks,' through which the water obstructed was accustomed to flow; and this, as said, `is essential to the existence of a watercourse.' Indeed, there is not a single fact alleged from which an inference could be reasonably drawn that the water in question was the water of a natural watercourse. On the contrary, the irresistible inference from the facts stated in the complaint is that the water obstructed was nothing but surface water, which was drained from plaintiff's land by the ditch, a mere artificial channel. No lapse of time could invest such a channel with the characteristics of a natural watercourse. Looking at the complaint alone, it would seem that the gravamen of the plaintiff's claim is the filling up of the ditch referred to in the fourth paragraph of the complaint. If so, there is no allegation that the ditch or any part thereof was on the plaintiff's land, nor is there any allegation that the plaintiff had, either by grant or prescription, acquired the right to use such ditch as a means of draining his lands; and therefore the filling up the ditch would not afford him any cause of action."
The case of Touchberry v. Railway, 87 S.C. 415,69 S.E. 877, shows that the principle is the same whether the roadbed was negligently constructed or not.
The appellant's attorneys do not dispute these principles, but contend that the allegations of the complaint are sufficient to show that the plaintiff had acquired a right by grant or prescription.
The complaint in the case of Lawton v. Railway, 61 S.C. 548,39 S.E. 752, alleged that the defendant railroad caused an embankment to be erected, and a ditch to be filled, which had been used for a period of 30 or 40 years, and, by the erection of said embankment and filling of said ditch, had cut off the natural drainage of a large part of plaintiff's lands, whereby he was damaged in the sum of $1,000. In discussing this allegation, the Supreme Court
said: "There is no allegation of any fact tending to show that the plaintiff had acquired, either by grant or prescription, the right to use the ditch as a means of draining his lands, for there is no allegation of any adverse use, made either by plaintiff or any one else, of the said ditch for that purpose, and certainly a ditch — a purely artificial channel cannot with any propriety be regarded as a natural watercourse. We do not think, therefore, that there was any error in sustaining the demurrer."
That case is conclusive of the question under consideration. After using the language just quoted, the Court proceeded as follows: "But this Court is always reluctant to dismiss a complaint for the want of allegations necessary to show that plaintiff has a cause of action, especially where, as in this case, there is a manifest omission in the complaint. For while it is true that cases must be decided upon the facts as they appear in the record, and, if there is any omission, inadvertent or otherwise, in such record, it is incumbent upon the appellant to supply the same before the case is submitted for hearing, yet, recognizing the fact that any person, even the most careful, is liable to make mistakes or omissions, we are disposed to allow the appellant an opportunity, if he can, to repair such faults. To this end we will allow the appellant an opportunity to apply to the Circuit Court for leave to amend his complaint, if he shall be so advised."
A similar opportunity should be afforded the plaintiff in this case.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed, with leave, however, to the plaintiff to apply to that Court for permission to amend his complaint, provided that such application be made as soon as practicable after the remittitur is filed in that Court.