*1 268 Company. McDaniel
Argument of Counsel. C. T95S. the railroad to- him company protect from trains.” passing Nelson, Illinois Cent. R. Co. v. 29, Federal Reporter, May 1913, 957. page
In view of the my case reversed, judgment dismissed, and complaint as motion to direct for defendant allowed, should have been it is to' unnecessary consider the other exceptions, and for this reason I dissent.
8621 McDANIEL v. GREENVILLE-CAROLINA POWER CO. & By Stat. Saluda River ,Saluda River —Navioable 'Streams. — navigable McElhaney’s stream to Ford. Dams—Damages.—The Navigable Streams — power has the grant private corporation the right to build a dam across a but it power has no liability release from llparian to a owner accruing years above after mud', erection from sand sediment accummulating pond. 'by Ibid.—Ibid.—Cohdemhatiohst.—In such remedy case the con- exclusive, demnation is not but action be maintained on the case in the Court of 'CommonPleas. Pickens,
Before 1913. Reversed. J., February, Shipp, Action D. McDaniel by Duvicy against Greenville Caro- lina Power Co. Plaintiff appeals. Harris,
Messrs. Ansel for appellant, & cite: Authority to build a dam across a by legislature stream nonnavigable 265; S. does not relieve 60 C. damages: S. 58 C. 560. could Legislature grant build a dam across a navigation 64; 565; 497; 2 Am. 40 10 82 purposes: R. Wall. 201; 335; 410; 661; N. 5 16 Am. D. 36 Ohio Wis. L. J. 100; 91; 570; S. S. 177; A. R. 13 C. 9 52 Conn. Wall. 459; 941; 2139; S. Am. R. 48 Code A. v. PowER McDanxeu April Term. 459; 146; Am. 209 U. St. R. Plaintiff *2 464; C. C. 387; 69 S. S. S. to condemn: 37 47 required 185; C. 69 C. 98; 431; 40 C. C. S. 481; 79 76 S. S. R. 502; At. R. 581; 740; 1050; 50 A. S. 21 A. 23 S. R. 77 S. E. and &
Messrs. & Haynsworth, Carey Carey Haynsworth Osborne, contra. & cite: Haynsworth
Messrs. Haynsworth Landowner 544; 385; 58 C. to condemnation: 37 C. 47 S. S. confined erect the dam 464; The C. S. S. E. 77 520; 42; N. Y. 99 U. N. Y. 35 23 protection: affords full 364; 635; 141; S. 269; 204 U. 17 166 U. S. S. S. U. 613; 677; 324; 14 Pac. 631; Fed. R. A. 12 R. A. E. L. 156; 83 C. 34 71 C. S. 575; 62; C.S. S. If alleged: negligence the river navigable, C. deliv- 22, Court was opinion
July ered by was brought This action Mr. Watts. Justice in 1907 The complaint
recover a River across erected Saluda company defendant power of sand water flow natural obstructed the which sand fill channel, channel causing land, lying mud, the plaintiff-appellant’s and thus causing sand, mud!, and! dam1, above the to be overflowed with that the dam was wrongfully water. There is allegation a The respondent interposed constructed. negligently that the same did on the complaint ground demurrer to “in action constitute a cause of facts sufficient tO' not state the statutes of authorized by the defendant was River, across the dam in question to construct Saluda State as the and inasmuch at said point, which is navigable McDaNieu Opinion [95 of the Court. S. C. does not charge said dam was negligently constructed.” Honor,
His demurrer, sustained the Judge Shipp, dismissed the complaint, and from this order eleven appeals the correctness exceptions questions of this The first ruling. three exceptions question 1 the correctness in that the acts of the holding leg-
islature of this make State River Saluda overruled, stream. These exceptions declare River to be stream as Saluda 16, 1797, far Ford. up McElhaney’s Act December vol. is conceded that Ford page McElhaney’s *3 above the land be several miles to alleged damaged. The other raise the that exceptions building dam, even did authority legislature, not excuse or it from to exempt damages liability done injuries landowners above the dam for dam, to land reason of the erection of the their over power
and that the had legislature only pur stream to dams and locks built for navigation allow corporation is a private and that poses, electric power in the business of generating engaged sale, it to lands above and liable for all done damages dam, which flow from the naturally erection of the the act of the though the building authorizing of the dam did for such provide compensation. We think these' should be. sustained. The exceptions legisla ture to' authorize and allow the respondent River, the dam in question build across which Saluda stream, had been to be a but it had no declared them the to build the dam and right exempt give power stream, either from to^ on the above any landowner dam, or below the suffer to- their injury might dam, of the erection of the even though reason property by They could, only permitted by authority State. river, and if so doing they the dam across the put McDanieu April Term, 1913.
injured any landowners stream, on the they required to respond If injury. in the erection exercised they highest degree care and were no manner negligent, conducted it manner, most skillful if yet, building maintenance the dam they affect their injuriously neigh bors, they liable in In words, other the legis lature has the right grant dam, permission tO' erect the and respondent had the to build and maintain the dam, yet, by so doing injure the landowners on the erection and maintenance of the dam is the direct and proximate cause of landowners, tO'the injury must pay damage, otherwise it would deprive prop erty holders of their take it them with out compensation, unlawful, and would be unjust, and con law, trary to all but all reason justice. bemay when dam is first built that will not injuri ously it, affect land some distance from and for a long time there will be no cause for them to but complain, when the pond, fills mud, sand, trash, and other causes things, overflows and lands, injury then the party injured has a action, cause of if the maintenance of the dam is the direct and proximate cause *4 of their injury. in this case water from dam on up lands, backed her and overflowed them water, mud, sand, with and other deleterious deposits. The complaint states a good cause of action. The fact that respondent’s act in the dam was sanctioned by State, and it did it under law, of and committed no fault in the erection it, of does not relieve if by so it doing injures or other destroys people’s property with out them. compensating I know of no^law that will permit a corporation, or an thereof, officer though he State, authorized to take the of an indi vidual for whatsoever, any purpose however beneficial it be to the public, without compensation, -suchpretended v. PowER McDaniee [95 C.S. the Court.
Opinion of to no protection could afford be void an.d authority would as a natural injured has been If the one. this dam of and operation the erection result cause1 proximate same is the direct operation to- such land, her then she entitled injury her for such injury. compensate would difference make any does views are My rule not, same or is navigable River whether Saluda Ford, 58 v. as laid Ward of damages flows dlown Co., E. 916, 60 C. v. and White 36 S. Manf. was erected the dam 456. When S. E. affected appellant’s manner in no' pond waters affected, and in no manner at that time was land. She damage, suffer she would that later could foresee she compensation, could not demand for that reason have made would claims and any suffered no injury, then she when her but part, on and speculative conjectural been operation erection and from the injury suffered then, of action a cause then, did not until question, in a then she her, position was and not until accrue her her until action brought Any an action. maintain invaded, affected, her rights injuriously Avere rights would' and she premature, have been would in Court. status the Constitution has no1power
“The legislature any right or corporation individual to any make over compen a just securing without public, save those Co., Amer. Iron Pembroke sation.” Lee a navigable on proprietor a riparian “The rights attaching those the same as substantially are watercourse, except nonnavigable aon ownership size greater enlarged respects that in some addi- there are some the stream capacity character. its navigable connected *5 privileges tional part to the access of has the right an owner Such he lot, and provided his of the front stream of the v. PowBR McDaNiüu Term, April private to build or obstruct navigation impede does the stream of use the water wharves, or or piers, landings Milwaukee, 565; Yates v. 40 purposes.” for any Wall. stream, if authorized a a
“While as a public indicted cannot be the legislature, of the act is no stream, the act still obstructing nuisance 8 Amer. owner.” to- private injuries against protection and Eng. E. Law stream, doubt one would no a private
“In the case of an action to-maintain owner an injured right in the cur- a change reason of himby suffered damage another injure right more But one has rent. a nonnav- that of than with stream water of navigable Penn. Williams, 122 Fulmer stream.” private igable, St. aas high- stream improve
“The State right superior navigation its aiding purpose.of for the way take and may owners. the riparian the rights much of so- compensation and without absolutely direct to improve required be may as stream of the water Bay Green its right.” limit of that is the But navigation. Co., 90 P. Wis. W. Hankavan v.Co. Co., Bridge v. Columbia held
It was State to-the soil title proprietor E. “that of the center far as the stream covered1 use to- public subject are navi streams when such aas highway, transporation of obstructions.”. the removal -be made so-by gable compensation paying to escape the respondent allow To she alkges been injured has if appellant the appellant, I, article out wipe- nullify would in her complaint, no-doubt of 1895. We 17, Constitution section if any, all damages, liable for should were though they of said caused by 18 —95 *6 V. COMPANY. McDaNIEE POWER
Concurring Opinion. [95 S. C. authorized to build. think that the We order appealed should be reversed. are of the
We opinion complaint alleges wrong- ful trespass upon the lands of the appellant, invasion of her The Court of rights. Common Pleas has jurisdiction cases, try even where condemnation is
3 the Court, proper procedure, is tried in that
an order must be first obtained' from the resident Circuit and from the first Judge, be had finding appeal may to Court of Common Pleas. see no reason why We issues as made in this case in cannot tried the Court of Pleas, Common as in other cases of trespass The she been has for the damaged wrong- ful invasion of her right by respondent, demands The denies damages compensation. that she is entitled to- The as made compensation. issues simple and should be the Court of Com- disposed Pleas, mon without to resort to the statute providing having for condemnation at the counsel proceedings. Appellant’s that stated did not care whether had to hearing statute, seek under the condemnation proceed case, in the Court of as made out pleadings Common Pleas. This Court is of the opinion appellant could have the course pursued granted by statute in was not remedy condemnation proceedings case, limited not necessarily exclusive and appellant to that remedy. reversed, The case judgment remanded for new
n trial. The; concurs. Chiee Justice concurs in the Mr. result. Fraser Justice action incorporation gives injury, not for The defendant can not negligence. escape liability by own to condemn. pleading wrong failing
McDaNieu April Term, in the result. The concurring Hydricic, Mr. Justice demurrer, and, therefore, sole question the Court, is, before this whether the com- *7 properly failed to state a cause plaint of action to' failing allege that defendant’s dam was constructed. negligently reason, was not demurrable for that because the complaint the construction of the authorizing imposes upon the caused corporation liability damage thereby True, owners. imposed terms, not, but it express is by necessary implication; why was the power of condemnation conferred the cor- upon And was the inserted in poration? why express provision act, landowners should have the to sue recover, condemnation, for and even after such damages as thereafter accrue which were considered or might in condemnation contemplated proceed- by appraisers No doubt the ings? had in mind the possibility, waters, the well known natural law of running accrue damages might many years after the by deposit of sediment in the bed of the stream thereof, and the consequent which could not be raising fore- seen with reasonable at the time of condemnation. certainty Therefore, to build the dam notwithstanding statute, conferred upon defendant plaintiff is entitled to compensation to her land any damage caused the dam. therefore, case, to decide in this unnecessary, and,
other questions discussed in opinion, and, questions some gravity, not heretofore Court, been decided I to reserve prefer opinion. my The defendant should not be allowed to shift ground contend here*—a not raised or point decided on circuit— is demurrable because remedy by condemnation, statute, afforded is exclusive. reasons,
For these I concur the order reversing the demurrer. sustaining