*1 Aiken. v. 1903. the difference existing a riparian proprietor in regard thereto. We confine our decision to case here made. seven refers
Exception to the declaration of law Circuit Judge response third request defendant.
He should have included in his the whole charge law on this subject, the effect of including the levees constructed defendant on his own land below This plaintiff. must exception be sustained. must, therefore, We order a new trial in this case. Court,
It is the of this that the judgment judgment Circuit Court be reversed and the action remanded to the for a new Circuit Court trial. OF
MATHENY CITY AIKEN.
HARRIGAL SAME. — Sewerage— —Torts—Injunc- 1. Cities Condemnation —Nuisance 2012, any private person tions. —Under Code secs. 2008 and damaged by empty- whose outside of limits is reason of ing pipes stream, thereby contaminating waters, into a may compensation exclusive, have awarded him. This statute is damages, and he sue the cannot for tort and nor to abate the statute, owner, nuisance. Could in absence of such nui- have abated, suit sance maintain ? complained privarte. nuisance here Nuisance. —The Gage, Aiken,
Before J., February, Affirmed. Two actions: (1) Aiken, Matheny against City John G. same. From order (3) Harrigal against sustaining J.
demurrer, plaintiffs appeal. Lamb, for cite: As due appellants, Messrs. & Croft Cool, Y., 309; Wheat., 336; law: 13 N.
process of v. Mathbny
Argument of C. Counsel. *2 564; Rim., 256-7, secs. on for Con. Williams Mun. Riab. Torts, 268, Has 269. appellants appro- property of 504; 1 Wall., 167; 10 Wall., to a use? 13 priated R. 474; A., A., 653; R. 296; A., A., 26 R. 38 R. 28 R. R. R. R. S., S., 541; 618; 48 443; A., 246; 133 U. 15 R. 138 U. R. 846; 711, on A., 691, 717; 844, 10 1 Ency., R. Wood R. Torts, Nuisances, 582, 586; on Mun. AVilliams Riab. Cool, 557; Wall., 504. 544, secs. 10 260-1; Rim., Con. on Cool, Rim., sec. on Con. so must be made: compensation If 634; A., secs. A., Code, 11 R. 691. 363; 1902, R. 48 R. R. S. 59 2012, no appellants: prоvide remedy 218? 2199 Dill, C., 437; on Mun. C., 377; C., 308; Corp., 42 38 S. S. Cool, 528; Rim., on 118; Corp., sec. 1 Mun. on Con. Smith 183; Nuisances, 1 586. 701, 709; Y.,N. on secs. Wood 74 ccwi be raised by pleading question Constitutional facts 1024; A., P., Pet., 398; 12 4 R. Ency. it: 10 P. & making R. 177; 420; 466; C., C., Liability 21 63 C., 60 177. S. S. S. 572; 2 Mun. Hill, law: 2 Dill. Mun. at common Corp. S. 971, 980, 981, 964, 965, 966, 985; 44 947, secs. Corp., 541; 1 172; 1047, 1048, 2010; 14 C., Code, 1902, Gray, ; 511; 773; Pick., 11 345 on 19 Corp., Gray, Mun. sec. Smith 365; 228; 489; Wis., Ind., 30 112 Can. Mass., Up. 102 67 S. 159, 160, Q. C., 373; Tort, Mun. B., 343; 28 Williams on 527; Y., 136; Ga., 110; Mo., 101 N. 98 261; Minn., 56 75 H., 111., 815; 136; 63 62 523; Mun. sec. N. Corp., on Smith 344; Midi., Ind., 325; Mass., 245-; 121 519; Kan., 84 58 35 406; Div., 22; Div., 22 52 296; 18 Y. N. Y. Ap. Ap. N. 433; 481; Cal., 492; R., 167; 111., 33 49 N. W. 74 Vt, 66 54; I., 455; 435; Mass., 208; St., 156 Penn. 9 R. Ind., 108 23; 435; Ga., 110; 145-111., 154 Conn., 484; 75 Ga., 52 67 E. 273; 365; R., 561; 12 Y., Wis., N. 30 94 Mass., 100; 110 ch., T., 705; 583; A., R., R. 5 12 Wheat., 40; 48 R. R. R. 590, 591; Wheat., 40; Nuis., 589, 12 91 U. 667; 1 Wood on S., 19; Black., 418; 39; 2 4 540; Black., 1 118 U. S., Wall, to suit to Wall, 657; 566. liable City protect 18 54 and to abate nuisance: injury continual property Smith S. Wall., 505; C., 522; C., 23 S. 2; 10 S. 198; 60 C., 165 REP.] 1;
on 1097; Mun. sec. C., 846; 33 Corp., 10 28 Ency., S. 968, 974;
Ency., A., 1 296; A., 474; R. 38 E. R. 4 R. E. L.
A., 572; on Inj., 501, 556; secs. Pligh A., 457, 459; 7 R.E. Mich., 522; Mass.,
73 39; 98 R., 50; 3 853; Am. 10 Ency., 1 Wood on Nuis., 582, 586, 425; secs. 587; 40 A. R., 14 Dill, R., 658; A. 613, 922; oil Mun. Corp., Nuis., Wood 801; sec. on Mun. 1630, 1095, Smith secs. Corp., Complaint may cunended demurrer sus- after 325; tained: 29 C., C., 20 460; C., 382; S. 37 S. S. S. C., 474; C., 305; C., 548; S. S. U. 567; 4
S., How., 131. *3 Hendersons,- contra, Messrs. cite: to erect a Authority system implies do all authority that is necessary to its Stat., on Int. of completion: 418; End. sec. E., 1 MсC.
546; C., 23 517; 10 2 ed., 237; R., Ency., 82; S. 57 Am. 102 Ind., 372; R., 601; 24 111., Am. 138 285. Ah?suit lies for mun. tort Hill, authorized 2 except 511; C., statute: 14 S.
290; C„ 421; 172; 19 C., C., 44 60; C., S. S. 58 20 S. S.
116; 419; C., 144; 27 34 C., C., 218; 20 C., S. 43 S. S. S.
401; C., 415; C., 281; 58 53 2 S. 640. As Spear, S. C., 157; demand 65 44
plaintiff’s injunction: C., S. S.
172; C., 62 56. Code, 1902, As to the to condemn: right S.
2008, 2012; C., 474; Dom., 240; 47 on sec. S. Em. Lew. C., 553; C., 129; C.,
48 64 42 36. S. Complaint S. S. a, C., 246; and not a nuisance: 54
alleges private S. 71; Hill, Nuis., 683; 363; 1 21 2 1 ed., sec. Ency., Wood 539; C., 329; C., 120; A., 676; C., 30 46 64 7 R. S. S. S. E. R., 715; C., 335; R., Am. Am.
24 46 52 864. St. S. St. dismissed allowed complaint Amendment sought after C., 226, 221; C., 31 introduces a nezv claim: where S. S. C., 575; C., 311; C., 491; 30 S. S. S.
142. 7, 1904. the Court opinion
March The was deliv- ered by Pope. Facts. —The Statement
Mr. Chiee Justice is taken from appellant’s statement argument: following Aiken. Court. “The above entitled actions were service begun proper of the summons and in each action upon defendant on the consent day September, 17th By counsel, causes were heard demurrer together, upon both Honor, case, in each at before Judge Gage, special Aiken, term of Court Common Pleas' county Aiken, at the first held Monday January, Each is against action for damages by riparian proprietor of a of Aiken for the stream city pollution by city sewerage. also for an the nuisance. injunction Plaintiffs abate pray owner and occupant plaintiff, Matheny, John acres, some three certain premises, containing seventy-five Aiken and of its limits. miles west of outside resides, land, upon This tract of Creek, which, known as watered a stream Wise having Aiken, westwardly through runs its source near Creek, Horse land and into Big the plaintiff’s empties five Warrenville and about miles beyond short distance the year plain- “For number of years prior business, in a tiff, dairy disposing Matheny, engaged towns adjoining farm dairy of his the product his farm Graniteville, not far distant from Warrenville *4 flowed The stream above desсribed which he resided. upon Wise Creek farm, of tract lying along and his through that he might for his cattle in order a pasture he had made for his afforded thereby the water supply himself of avail of Creek his the waters Wise His cattle drank stock. in his com- for, as alleges business prospered, the con- by was destroyed business dairy before plaint, Aiken, ‘said of system by city of a sewerage struction to this very times profitable has in past business dairy plaintiff.’ . of Carolina Assembly the General South
“In an election Aiken to order council of the city authorized constructing provide bonds issuing the purpose v. Aiken. 1903. K.EP.]
system water works and The text of this act sewerage. is as follows: “ ‘An act to authorize the council Aiken city to order an election for the purpose bonds for the issuing purpose ain system water putting works and sewerage. “ 1. Be ‘Section enacted and House of by Senate Representatives Carolina, of the met 'State 'South now in General sitting Assembly, by authority same, That the council of Aiken is city hereby authorized and empowered, upon presentation to them of a petition, aof of the writing, freehold voters of said majority city, order an election, two weeks upon notice advertisement ain newspaper published said of the time and city place election, of said to determine the whether or question said shall issue bonds in an amount for, to be petitioned aforesaid, voters, as said freehold not to exceed fifty thousand dollars. n ‘ That in the event an ‘Sec. election called as being for, the as providеd above to>whether or not question said shall bonds be issued shall be aby determined majority voters who shall vote at qualified said election. “ 3. That if a at ‘Sec. voters majority qualified bonds, shall said election be favor of said then issuing council of Aiken is and author- hereby empowered ized to issue bonds to the amount SO'voted and in such times, fall at such denominations and to due not earlier than thereof, from the date determined years ten bemay Provided, said council: bonds resolution of shall bear Said cent, rate of interest than six annum. per per no greater “ That shall full said council Aiken have ‘Sec. there- to sell said bonds to use money arising for the exclusive said water works purpose erecting Provided, or both: bonds shall not system,
or sewerage Said less than sold fоr their or face value. par *5 “ 22d, A. D. 1893.’ December ‘Approved XXI., at vol. 544-545. Large, pp. “See Statutes “Thereafter, defendant, Aiken, of the Court.
constructed for the sewers the sewer purpose collecting in said all and of the was collected and age city, sewerage carried in one main to a miles large pipe point about two Aiken, west of the its where contents are discharged into Creek. The at which the point Wise sewerage farm, into1 Creek is and the emptied Wise above plaintiff’s effect of this into said stream is to discharging sewerage use, render its unfit for water and to cover banks and of the same with a and unwholesome sediment. bed filthy “The facts set forth in the complaint purpose to¡ true, this demurrer are assumed and it there be appears from that the of the into the stream flow discharge contaminates, and farm fouls ing through past plaintiff’s Creek, and waters of Wise and the said pollutes stream emits nauseous odors where it and offensive flows land. water of the creek is plaintiff’s The now through drink, unfit and unwholesome to and it has several poisoned cattle, from which died. The they plain plaintiff’s business, once prosperous, tiff’s dairy flourishing broken up destroyed. “The the sum of five thousand prays defendant, Aiken, dollars, asks that the the contents of its sewers into from enjoined discharging Creek, use the so that he waters of said stream may Wise accustomed nature. in its purity original few of G. exceptions Harrigal “With J. a similar cause of action. Harrigal sets out substantially land, twelve of a tract of about containing is the owner acres, the east lands of Wise Matheny. bounded on John resi- runs the land of Harrigal. Creek also through from the a few distant only yards of Harrigal dence odors from the waters putrid flowing stream. The offensive as a of resi- unhealthy place his home have rendered past about his dence, atmosphere' the purity destroyed value of home, property. depreciated greatly erect fences to his stock prevent has been compelled He of the stream. The waters poisonous drinking *6 Matheny also that the defendant committed
plaintiff, Harrigal, alleges the acts of for before the complained wilfully recklessly, laid, of sewers were he informed the of mayor Aiken that this stream would into empty city sewerage to* the value of create nuisance and tend greatly depreciate his and he this done. The property, protested against being the sum three in of plaintiff, prays Harrigal, dollars, and ásks for relief injunction thousand abate the nuisance. that the acts
“Both contain of complaints allegations Aiken, in in rights of destroying plaintiff’s property owners, of Creek as are violation riparian waters Wise Carolina, I., 5, of article section Constitution South that the are of their without deprived plaintiffs property law; further, that defendant are due the acts of the process of article of the amendments to Consti- violation V. States, in that are deprived tution of United plaintiffs law, and that the acts due process their without their constitute a taking of the defendant and are contrary use just compensation,
public the law оf the land. two demurs to each action upon grounds:
“The defendant of a statute authorizing “1. That in the absence sued in an action action, a cannot be corporation municipal tort. is a and not the nuisance complained
“2. That not sustained such nuisance, have plaintiffs private maintain a private entitle them to as would injuries special for damages. action Honor, his on to be heard before
“The demurrers came he sustained said hearing and as a result of Judge Gage, demurrer, the second. but overruled first ground 1903, the plaintiffs February, the 16th Thereafter, day Honor, then Gary, sitting Judge before appeared motion, Aiken, and made county Circuit Judge com- counsel, to amend both to defendant’s after notice acts were further, that defendant’s by аlleging plaints, v. Aiicen. Opinion of the Court. . I., 17, violation of article section of the Constitution of Carolina; I., also article South section of the Con- stitution of Carolina of and also in South violation of XIV., article of the amendments to the Constitu- *7 of States; tion the United further, and that alleging the are citizens and plaintiffs residents of the of State South Carolina of and the United of America. States refused to1 Gary amendments, allow these
“Judge upon the that he jurisdiction. had no ground From the decree of his Honor, Honor, from the order of his Judge Gage, Judge then Gary, plaintiffs list appealel upon the of exceptions brief, of at folio 60 the beginning which are exceptions as follows:
“1. Because it is respectfully submitted that the acts of defendant in the stream fouling mentioned in the com- and in the of plaint same, the use of the depriving plaintiffs in the destroying plaintiff’s, Matheny’s, therein property mentioned, violates their as secured to them under rights amendment 5 of the Constitution of States, the United person which that no shall be of provides deprived property law, due of and that process without shall private property be taken for use private just without compensation, and Honor, that his the Circuit erred in not so Judge, deciding. “2. Because that acts respectfully submitted the of in the stream and defendant of fouling depriving plaintiffs same, use the and in the the of destroying plaintiff’s, as stated in is in viola Matheny’s, property, complaint, of as them rights tion secured to1 section 1 plaintiffs’ the 14th amendment the Constitution of the United States, that shall no prоvides deprive person any State law, that his without due his property process Honor; in not the Circuit erred so Judge, deciding. that the acts
“3. Because it is submitted respectfully in and in plain- defendant stream fouling depriving same, of the use of the and in destroying plaintiff’s, tiffs as mentioned Matheny’s, complaint, property, as to- secured them under violation of plaintiffs’ rights I., article of the Constitution of the State Carolina, which no shall provides person South law; his without due deprived process Honor, not so his Circuit erred in Judge, deciding. “4. It is that the acts of the defend- respectfully submitted ant in the stream mentioned in the and in complaint, fouling same, use of the and in depriving plaintiffs destroying as mentioned in the plaintiff, Matheny, is in complaint, violation of secured plaintiffs’ rights I., them section of аrticle the Constitution Carolina, which declares that private property South shall taken for the use just not be compensa- tion first made therefor. being Honor,
“5. Because Circuit erred Judge, that, law, under a municipal the common corpora- deciding *8 tion, State, the from suit unless to exempt right like the whereas, he statute; should sue had expressly by given have that under the common a municipal corpo- decided law a for done it which deprived ration was liable any wrong by his property compensation. person Honor, that his the “6. is submitted Circuit respectfully It 1893, the act of author- that erred Judge, holding for the exclusive of Aiken to issue bonds ized the city the a the system, city of erecting sewerage gave purpose into' stream which flows its the to empty sewеrage right that land, it the appears for by through plaintiffs’ is is two miles west such sewerage emptied where place in said act to Aiken, no' authority and given limits; outside corporate the city empty sewerage act, hence, a construction such would proper within the empty sewerage have had right only Honor, his Aiken; limits of the city corporate that the had therefore, erred in deciding Circuit Judge, its beyond said discharge sewerage under act to authority limits. erred in Honor, his the Circuit deciding Judge,
“7. Beause 2012, Code, section allows Townsend’s that the act v. Court.
condemnation proceedings compensation person whose property been taken for the of construct- purpose a for ign system; it is sewerage submitted condemnation are not allowed for but proceedings purposes, only purpose water works and electric lights. “8. his Because Honor erred in that the holding plaintiffs have obtained might compensation for sustained a them special submitted that proceeding, being there no-statute in this for special proceed- State providing for ings compensation taken for the use of sewerage system by And it is municipal corporation. that his submitted Honor further erred that the holding not plaintiffs did upon I., article rely State Constitution; for while it is true such section and article were expressly pleaded were complaint, yet they specially referred to in the counsel, argument plaintiffs’ and- relied them they upon to sustain the rights plain- tiffs.
“9. It is if submitted even an action for damages cannot under thе of this law sustained against municipal corporation a person’s destroying property, nevertheless, that action may, be maintained such against municipal corporation protect from continu- ous such injury by municipal corporation, and especially enjoin corporation continuing perpetuating nuisance.
“10. Because Honor erred in the first sustaining *9 set defendant, forth demurrer of the ground for it is the submitted that complaint does state facts sufficient to constitute a cause of action.
“11. The further of plaintiffs except rulings his Honor, in allow the Gary, refusing Judge plaintiffs in their the set complaints particulars amend forth in the amendments, notice the and which are containing proposed at of the end line of the 4th ‘By follows: adding para- herein the complaint of the amеnded “And following: graph I., 17, section of in violation article also Constitution Carolina, shall provides private which that South taken use without just compensation therefor; I., first made and also’in violation of article being 33, 1868, section Constitution of Carolina of South which that shall or provides not be taken private property or for the or for applied public use, use of corporations, use, without consent private or a just owner be made therefor.” Also- compensation at adding the line end of the 5th of said amended paragraph to wit: is also< complaint, following, “And in violation of XIV., article of the of the amendment Constitu- States, tion United that no shall provides State make or enforce law which shall any abridge privileges or immunities of citizens Stаtes, of the United nor shall any life, deprive any person liberty State law,
due nor process deny juris- within its any person diction of the equal protection law.” And at by adding the end the 5th of the said paragraph amended which shall stand 6th following, as the said allegation “6. The further complaint: that at the times alleges mentioned he and now a citizen and complaint, was Carolina, resident and also a citizen South ’ resident of the United of America.” it is That States that Honor, submitted respectfully had the Judge Gary, amendments, allow such and he authority so¡ in not erred but this deciding; should over- exception be ruled, the ask now leave of the plaintiffs Court Supreme the furtherance of to allow justice to be complaints amended as for and as stated.” prayed above case, itas does the
This so-to involving suability, speak, torts to have been municipal corporations alleged moment, them, one of it is committed by possibly to have the of the Circuit us. language better before Judge is as follows: The text of decision cases,
“The same issues of law are made these two so consent of were tried at one counsel they together issues arise upon the same the demurrer hearing. *10 v. ’ C.S. Court. issues, to the and the demurrer makes two to wit: complaint, on the of the appears face complaint: tort, “1. That action is for for the misfeasance of a of the waters municipal corporation resulting fouling stream, of a there is statute a cor- when no- running making therefor. liable poration a
“2. That the action is for as aforesaid for nuisance, a or and not nuisance public private, special par- law defendant not liable ticular when plaintiffs, a nuisance. plaintiffs “It is settled line of decisions of Court Supreme is not State, of this -that ordinarily municipal corporation to an action for tort of the except by permission liable legis Hill, 571; Charleston, lature. Coleman v. White C., 291; Greenville, 44 Chester, 14 Parks v. S. That not denied by plaintiff. that the acts of the defendant
“But the complaint charges States, at of the of the United are in violation Constitution 1. ‘That shall where it is no provided: person amendment And without due law.’ process deprived be use shall not taken for public 2. ‘That private property that the And it further alleges just compensation.’ without are in violation of the Constitutiоn defendant acts of the L, it is State, provided, at article section where of this * * * without due of property ‘no shall be person deprived of the Federal Con- The fifth amendment of law.’ process Federal on the of the is a limitation powers stitution and not the powers government. State government, Wall., Co., Thorington v. Green Bay Pumpelly therefore, has, no rele- S., 492. It U. Montgomery, cause, and its consideration bemay of this issues vancy further comment. without dismissed Constitution which of the Federal “There is provision * * * any person ‘no shall deprive declares State amendment, of law’ sec- (14 due process has not that provision by invoked the plaintiff tion but 1), There is also provision argument. plea *11 Matheny v. Aiken. '
Constitution which declares private shall not taken for use without just compensation first being made therefor. I., Article section 17. The plaintiff has not pleaded violation of that law.
“The left, then, only inquiry is to consider if the things charged the against defendant in the complaint disclose a' denial the defendant of the protection of the of the law land, or, as it is called, sometimes due process of law (article I., Constitution The ’95). complaint does not refer to the warrant of the defendant to do the things it. charged against The are allegations simply the de- fendant, a municipal corporation, constructed in 1899 a sewerage system purpose carrying from sewerage the water closets in said city, into sewerage empties Creek, Wise’s a stream of water running the through plain- tiff’s acres of land seventy-five and at point above plaintiff’s land, and ‘that said emits offensive very and nause- odors, ous contaminates, the same fouls and pollutes * * * water said creek where the same runs plain- through tiff’s farm. And causes offensive odors and smells also said plaintiff’s farm, and has the use of destroyed the same farm, as a and has fouled so dairy polluted water of creek said as to render the same nauseous and unfit for his to drink from, cattle and has several of his already poisoned waters, cows said polluted caused drinking thereby them to die. And has also by said polluting fouling water, caused business to be broken plaintiff’s dairy up and $5,000.’ The destroyed, damage plaintiff for a also to arrest permanent injunction prays There is no the defendant’s allegation con- wrong.
struction or of the sewer operation negligent. entitled to of the com- protection plaintiff’s property mon and statute law of force when the first Constitution was That common and statute law is enacted. what Con- land, stitution of 1790 and denominated law of of 1895 entitles due process and what Constitution Simmons, 2 If the defendant Spear, law. State v. of the Court.
awas private corporation, or a natural person, common and statute law would declare it was liable for a wilful hurt to plaintiff’s law, But property. same common be else, cause by nothing municipal corporation exempted from such State, for it was esteemed a liability, part suit, and like the exempted except consent of State, in a statute. expressed Charleston, White Hill, altered, case 571. The is not if a warrant for defend *12 ant’s action be disclosed and considered. As hereinbefore stated, the do< was, not disclose that warrant. It pleadings however, adverted to fully both sides argument. December, 1893, The in General authorized Assembly, Aiken to issue bonds for the exclusive ‘of purpose Statute, a 544. The erecting system.’ sewer was constructed to1that question pursuant As authority. said in the to construct power was the sewer argument, to its contents implies necessity discharge somewhere. If a is not liable for its action municipality statute, of a it is not liable if its certainly action independent a statute. be warranted by stated,
“As does not on that complaint before rely State, of this clause of Constitution declares shall not be taken for with- public purposes privatе property first made therefor. just out compensation being counsel full was plaintiff’s “Although argument a effect that the had right strong a stream', its waters was fouling permanently for for the compensation demand yet taking property, referred argument plea breach of right I have tempted, been strongly the Federal Constitution. case under the however, provisions consider plaintiff’s I Constitution, reflection has satisfied me but State not made learned a case which was not make had better counsel. defendant, consider, if the though
“It remains yet from the continuance enjoined is liable tort, triable is for a permanent one nuisance, aof v. Aiken. . injunction well as for damages. limit The to which our Court is to hold that gone a municipal corporation not liаble to be mulcted in for tort damages a except statute it. held, allow It has not so far Ias have ascertained, that if a municipal corporation nuisance, creates a the court of could not equity enjoin its further a continuance. If munici- pal liable, is not so corporation it is because such corporations are not control, amenable to judicial wherever their action is of a contract independent relation and the outcome of mis- feasance The reason only. assigned is not why city liable to an action for misfeasance is that the city ‘is a corporation mere government agency established for Charleston, v. purposes.’ C., (Young 118.) S. cannot be sued its tort, Courts contract or it because is not corporate but A entity, sovereignty. is not a sovereignty, corporate entity, may contracts,
be sued on its too, and it be restrained may, other C., actions. illegal 198; Wilkins Gaffney, S.
Vesta Mills v. Charleston, Milwaukee, Yates *13 Wall., 10 If the true, 505. allegations the be complaint demurrer, are and assumed to be on the defendant they has a created nuisance damaging to plaintiff’s property. of land owner the banks a
“Again, along running water, stream has a and the property right flowing of the waters as by sewer so fouling city permanently owner, is the the land property by damage taking citizen v. compensation. from the Green Pumpelly Co., Wall., 167; 13 on Constitutional Cooley Bay Limita 544; Wilwaukee, Wall., v. tions, 504. But if this Yates in a so, would be allowable case like injunction finally The was in 1899 author by that at sewer constructed bar? in 1893. It is for purposе, of the
ity granted State 4,000 it off the fecal matter of people. carries had, therefore, stream, to foul the right The legal that, private destroyed, if in doing to compensation has at the hands of right thereof owner 12—68 Court. The act of 1896 that of the
the city. recognizes right Code, citizen, him to a sec. Townsend’s points remedy. works, matter that act subject 2012. The is water sewer- age lights. (Section 2008.) remedy prescribed the statute the same for the condemnation of provided by it is lands railroad exclusive by corporations, generally C., Co., other v. R. remedy. R. S. every Tompkins is not It is either remedy injunction. Certainly or an the statute action the special proceeding' prescribed This action is not a special in this Court for compensation. herein nor cаn the be sustained complaint proceeding, I., under article section compensation one First, article and are not that because Constitution. no^ second, because there are allegations on. And relied to compensa- denied the plaintiff’s right has the defendant consented to tion, corpo- or that never entry C., ration. Glover v. Remly, S. conclusion, the does not lie. reached the action
“Having irrelevant; but the issue of demurrer The second ground it. The does complaint ‘I consider made and shall In nuisance is inferable. from which a public not state facts in the case of differs from particular, C., 348, cited defendant. Co., R. R. S. Baltzegar waters a manufacturer and fouled the If the defendant was an owner would have riparian stream with drugs, ‘If a рerson brings to him. action for done if it should escape on his land anything accumulates he at his does so peril,’ neighbor, cause may damage . also, C., See, Co., 42 411 Berkeley Frost v. S. quoted Injunction, 49Co., Spelling Threatt v. Mining *14 altered the defendant is not because 313. The case am, I there of a sewer pipe. means by the waters fouled of must first demurrer that the fore, ground opinion of demurrer must be the second sustained, ground be and the dismissed.” ordered, complaint It is so overruled. respectively that the plaintiffs no question There can be the It invaded defendant. by rights had their property have v. Aiken. may be conceded that the sewer as authorized the legisla
ture this to- be constructed the city 1 Aiken, was a to the necessity preservation the citizens,
health of its such hаd yet city no right citizens, these despoil the plaintiffs, of their property without compensation. The General if Assembly, it do so the act of has no itself to the disregard plain mandates of the State, Constitution of this it when authorized the of Aiken to city take the of these property plaintiffs its sewer. The object of the very Constitution is to the protect individual owner of property spoli7 ation at the hands of property or any person persons or power without compensation for its or destruction. injury To say is to advocate an contrary I would absurdity. be inclined to hold that the defendant, acts of the city Aiken, its touching Creek, into emptying sewerage Wise destruction, or very injury, of great these therefor, right plaintiffs without compensation such an invasion оf such property rights immediately gave action, the plaintiffs it right were not some matter if which mil be It set must specifically be hereinafter forth. remembered that the complaint of Aiken alleges city its has into Wise Creek miles emptied sewerage two beyond limits, its and that this stream corporate runs through that there plaintiffs, these also are no alle in the this action gations justify council Aiken. act of the Certainly city legislature, no gives the passed year authority, There is no in the com directly indirectly. allegation has had tanks septic that the for the plaint attempted of the matter which passes purification through pipe into dumped it is Wise’s Creek. These would before But are defense. now we confined to the demur matters and to the of fact in rer to the complaints allegations It seems’to-me that it is there made to complaints. appear defendant, Aiken, that the purposes admits, actions, caused its two these *15 180 Mayheny v. Aiken. of the Court. caused its limits and for two miles beyond conducted city- that distance to into Wise’s Creek at same be emptied limits, effort its to part purify
from its without on any are into the said the contents 'its before they emptied pipe creek. instances in several cases that some
It has been held 'for to actions tort individuals. cities be held liable may Mass., 344: “If a Boston, is said in Hill v. 122 As City of town constructs or maintains the bridges or negligently a or a natural in a across river navigable or culverts highway water-course, cause the to upon so as to water flow back another, tort, is an actiоn the land liable injure individual would be any corporation the same extent Meto., Adams, acts. 1 similar v. Anthony liable for doing 110; 284, 285; haven, v. 5 v. Gray, Perry Fair Laurence 544; 358; Lowell, v. Worcester, Id., Id., Parker Whee Allen, Also-, case, in the same Worcester, 10 591.” ler v. law, makes if authority a its city, by agents, “So of another to common sewer upon or empties him in an action of tort. Proprie it is liable to his injury, 223; Lowell, v. Hildreth v. 7 Gray, tors and Canals Locks Mass., Id., Haskell New Lowell, Bedford, the cause of action is cases., neglect 208. But in a public of a work duty, rendering corporate the performance intended, but it for which it for the purposes unfit act, direct causing injury doing wrongful another, of the limits of outside Mass., 216; Worcester, 110 In v. City Merrifield work.” an 592, which was action of c., Reports, 14 American s. Worcester, whеre the city against tort seized of land (plaintiff) alleged Brook, a ma and that he owned of Mill each side lying steam brook, fitted with up large engine on said chine shop steam boilers, furnishing purpose ; that he had the right machine shop of said the tenants and uncorrupted— flow pure of the brook the water have essential to condition being absolutely a pure such water *16 works; on of his “that the carrying defendant wrongfully cast, and unjustly carried and into' said Mill deposited Brook and the thereof, waters at in the points channel thereof above and higher than the of works the plaintiff, quantities great * * * of filth sewers, discharged privies * * * water closets which the water became cor greatly and unfit rupted business, for use in the plaintiff’s &c.” judgment Court was to' reverse Appellate of the Court below and down trial judgment send this question: “Whether the which had suffered damage plaintiff was in attributable any degree improper construction or sewers, unreasonable use of the or to the negligence other faults of defendant in management them, of which does question not seem to have been tried. If it be attributable, should found to be so the action bemay main * * tained In the course of the of opinion Court, in cited, the case just these words will be found: “To enable riparian owner maintain an action for he must damages, show not that defendant only has done act some tends which stream, injure and which he has no do, legal right or which is in excess so as to legal right be an thereof, unreasonable use also but that detriment of which the is the complains result of that cause.
When he can an detriment appreciable show to himself and another, such connect it with he wrong recover the may shown to be due to' v. Merrifield wrong. Allen, Lombard, 13 16.” The recent case of comparatively Otto, 1 Columbia, v. 540 Barnes District in (decided sustained in the case which was of Maxwell v. Dis 1875), Otto, 557, 1 Columbia, also Dant v. trict District Co true, Otto, It is these lumbia, cases decided by were Court, have never' yet majority they bare Columbia, In v. District it was overruled. Barnes supra, held, charter, that a or village holding voluntary care for its mere negligence responsible manage these cases have been ment its streets. While criticized and in our case of v. Boston, supra, Young Hill City of v. the Court. Charleston, City is still the rule yet S. Supreme just United Court. We remark States would here, Hill, Chаrleston, White Council City was the case where the council of ordered Charleston a citizen house of blown private dwelling up by to check the a fire in The case powder spread of that city. Columbia, C., 412, of Black v. Council City failed to where water works Columbia furnish water with a fire de which to extinguish residence, he stroyed plaintiff’s notwithstanding paid *17 Chester, water The case of Coleman v. supply. C., 291, where the was was of private property Chester, taken the council to wit: a of plain of by city piece tiff’s a street in that case of city. land to-widen The Young Charleston, the plaintiff was where Council City supra, of street of was reason of a defective culvert on the injured by fall under of cases that None of these cases the class city. all of our Reports, cited from our Carolina but herein South cases fall under the class there were Carolina where South do the with full to valid laws council vesting power remarked, the act of the of. As before complained acts the to ordain Aiken only gave coupling water system, works piping limits to go bej^ond lay additional power 1896, act of as act of amended yet by sewerage, 1, Code of forth as section volume set this, em Carolina, has corrected and fully of South Laws in this to construct cities sewerage; powered cities to1 and to con lay has authorized pipes section 2012 it to' lay pipes, or enable way demn any property rights for such just thereof compensation owner payment to.the condemned, such condemna be wаy property rights manner law for provided by tion to determined be railroad way corpo lands and rights by condemnation that the any it will seen mode of acquiring Thus rations. statutes, has been fixed our way or rights to1 owners compensation riparian duty includes so, stream. along This the method being pre scribed for such is exclusive purposes suit therefor for any damages. complaint does not set a refusal up defendant to with this comply law. The Circuit Judge not in error in holding views herein an adopting nounced.
It is not to consider necessary defendant’s ground It appeal. remarked, however, bemay that we fail to see error in that any of the part Circuit decree which refuses to hold that the action of defendant was a public and not private The mere wrong. оf the shows that it
reading was a private wrong. It is the Court, of this that judgment judgment be, Circuit Court and is affirmed. hereby, concurs in the result.
Mr. Justice Jones I concur in the view plaintiffs Mr. Woods. Justice had an and exclusive adequate under section 2012 of remedy Code, the Civil and in of the Circuit affirming judgment unable, Court on sufficient I am ground. however, to assent to the view indicated the Chief that, statute, for that
Justice, but these actions could *18 be maintained as actions for for tort damages against of Aiken. That a municipal cannot be held corporation action, for in an liable such has been often decided Charleston, in this v. 2 White Council State. City Hill, 571; Chester, v. 14 v. Coleman Black City S. C., 412; Columbia, 19 v. The Council Young City S.
Charleston, C., 116; 20 Chick v. County, Newberry S. C., 419; C., 141; Hill v. Parks v. County,
S. S. Laurens C., 168; Laurens, v. Greenville, 44 Bramlett City S. C., 60. shown,
As these decisions are not the Chief Justice elsewhere, and aсcord with the of authority they weight reasons, could be sustained on For these principle. hardly I that the doctrine maintain should not be ex- agree they not to the extent of that a tended. They go holding .do Bamberg. Rice
Argument of Counsel. not municipal corporation be restrained from commit- may nuisance, or ting wrongfully taking damaging private or that property, not be property may recovered back when taken unlawfully corporation. Hence it seems to me that the correct, of the Circuit opinion that but Judge for the exclusive remedy provided by under allegations complaint, plaintiffs would have entitled to an order injunction, but h> verdict for damages. Gary did not sit in this case. R.
Mr. Justice
RICE BAMBERG. Property 1. Reae —WiEES.—When widow renounces a devise and takes homestead and lands, dower in her husband’s in- she has no terеst as devisee other lands of her testator. large
2. proceeding equity sale of a tract Ibid. —Saee.—A of land pay debts, part cannot be referred to under sell will to thereof, question, pay now in debts. fact, duty Judge there are no issues Verdict..—-When direct a verdict. Papers paper alleged Evidence —Lost of a —Record.—Proof lost from a attorney, cannot record be made the statements of an having it, say who does not recollect ever seen but who would if he had not seen it he would not have advised as he is said to have done. Barnwell,
Before J., term, 1903. spring Affirmed. Gary, Action M. by Eugenia Rice E. M. against Bamberg. Erom judgment plaintiff, defendant appeals.
Mr. Jno. R. cites: Bellinger, appellant, Defendant were tenants in common admr.: Hill *19 through Ch., 357; 11 Rich. Eq., Rich. Eq., Sale of land in should be question to power under will: 2 referred Ch., 51; Ch., 356; Hill 1 Hill