47 S.C. 485 | S.C. | 1896
The opinion of the Court was delivered by
This case being in all respects, except in one particular to be hereinafter noticed, like the case of George F. Leitzsey against the Columbia Water Power Compony, just decided by this Court, is ruled by the principles therein announced.
The point of difference in this case and the one just referred to is this: In the third paragraph of the complaint it is alleged that “On or about the 13th day of March, 1891, the said board of trustees of the Columbia Canal purchased from the plaintiff herein the right to overflow and cover with water, and keep covered with water, 14-| acres, part and parcel of the tract of land described in the second paragraph, and bordering on the said river.” These acres, however, are not included in the sixty acres for injuries to which damages are demanded.
To this defendant demurred as follows: “The complaint upon its face shows no cause of action, in that it appears therein that the plaintiff granted to the board of trustees, under whom defendant claims, the right to overflow and cover with water, and keep covered with water, 14f acres of land, being part and parcel of the same tract alleged now to be damaged by reason of the keeping up and maintaining of the dam alleged in the complaint to be a nuisance. In law this grant of the easement to overflow this portion of the particular tract of land has the same effect as if condemnation proceedings had been taken under the provisions of law, and all injuries to the residue of the tract of land are conclusively presumed to have been taken into consideration in fixing the amount .of the purchase money of the parcel of land so granted.” The demurrer was sustained on this ground as well as upon the other grounds stated in said Eeitzsey’s case, and appellant’s third exception in this case alleges error. The Circuit Court did not err.
The judgment of the Circuit Court is affirmed.