50 S.E. 775 | S.C. | 1905
March 28, 1905. The opinion of the Court was delivered by The plaintiff appeals from an order of nonsuit. After alleging the corporate existence of the defendant railway company and that plaintiff is owner of the premises described, the complaint further alleges:
"(3) That on or about the day of December, 1900, the defendant, with force and arms, entered upon the aforesaid lands of the plaintiff, dug up the soil and constructed a side railroad track thereon, connecting its two lines, that is to say, the South Carolina and Georgia with its (defendant's) main line. And the plaintiff further charges that having converted the said lands to its own use, proceeded to and did build a high embankment in front of the plaintiff's residence on said land within five or six feet of his front yard and near his front gate, completely obstructing the road to and from plaintiff's premises, as aforesaid.
"(4) That the said embankment has caused the surface water to collect and flow back upon the plaintiff's front yard in large quantities in a concentrated form, so much so that in rainy seasons it renders plaintiff's front yard almost impassable, and the other lands of plaintiff's surrounding his dwelling absorb the water to such an extent as to render it almost valueless; and the plaintiff further charges that the said track built upon said embankment is used as a `Y' for the purpose of reversing engines upon and transferring trains from its lines of road, and in doing so the defendant's engines and cars are stopped in front of plaintiff's residence and, together in passing to and fro, the plaintiff and his family are subjected to the continual noise of the train, day and night, to the smoke and cinders from the locomotives to *243 such an extent that his residence is rendered almost unhabitable, and his aforesaid valuable property rendered almost valueless.
"(5) That the acts of the defendant herein complained of were and are wilful and wanton, and the plaintiff has already been damaged in the sum of $1,999.99."
The Circuit Court, in granting the nonsuit, held that, if the complaint be treated as one for damages incident to the construction of said railroad embankment, plaintiff's remedy was under the condemnation statute; that if the complaint be treated as an action for negligent construction of said embankment and operation of said railroad, no negligence was either alleged or proved; that, with respect to the claim for damages from surface water, alleged to have been caused to flow over plaintiff's land by reason of said embankment, there was no evidence to take the case out of the ordinary rule as to surface water and bring it within the rule announced in Brandenburg v. Zeigler,
We think the nonsuit was properly granted. The condemnation statutes allow an assessment not only for the quantity and value of the land which may be required by the railroad company, but for any special damage which the owner may sustain by reason of its construction — sec. 2190, vol. I., Code 1902. This would certainly include the damages resulting from the construction of the embankment in a proper manner. In all cases, except where the right to compensation is disputed, or where the owner has not actively or constructively permitted the entry for construction, the remedy afforded by the condemnation statute is exclusive.Glover v. Remly,
With reference to the matter of surface water, there was no evidence that the defendant did anything beyond constructing the embankment for its track in a proper manner. The evidence was to the effect that by reason of the slope in the land surface, the natural drainage of the surface water was over plaintiff's land, and that such drainage had previously been prevented only by the construction, by the town council, of a small ditch which carried the water into Windy Hill Branch, and that said embankment filled said ditch. If any special damage resulted to plaintiff by reason of the construction of the embankment in a proper manner, as already stated, the condemnation statute afforded a remedy. There was certainly nothing in the evidence to take the case out of the rule as to surface water announced in Edwards v.Railroad Company,
We have not deemed it necessary to refer to the evidence as to the leakage of water from the defendant's water tank, as the complaint makes no reference thereto, and the action is based solely upon the result of the construction of the embankment.
The judgment of the Circuit Court is affirmed.
MR. JUSTICE GARY did not sit in this case by reason ofillness. *246