Touchberry v. Northwestern R. R., 69 S.E. 877

69 S.E. 877 | S.C. | 1911

January 7, 1911. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, on account of the overflowing of his lands by the defendant.

The jury rendered a verdict in favor of the plaintiff for $500.00, actual damages, and the defendant appealed upon exceptions, which will be incorporated in the report of the case.

The appellant's attorneys did not argue the first exception and therefore it might very properly be considered as abandoned; but waiving such objection, it cannot be sustained, as it is without merit.

The second and third exceptions will be considered together.

The second exception assigns error, in that his Honor the presiding Judge charged the jury, as follows:

"The railroad has a right to obstruct any kind of watercourse, natural or artificial, in the construction, maintenance, operation and repairs of its roadbed, if it does this in a way that is not negligent, as I will define negligence to you later on."

And, the third exception assigns error, in charging the following request, submitted by the plaintiff's attorneys:

"The defendant, railroad company, has a right to obstruct the flow of watercourses and of surface water, provided its road is not negligently constructed; but if the road is negligently constructed, and as a result of this negligence, water is dammed up and thrown back on the plaintiff's land, and injures it, the defendant is liable for such injuries."

In the case of Lawton v. Ry., 61 S.C. 548, 39 S.E. 752, that great jurist, Mr. Chief Justice McIver, thus states the rule in this State, as to surface water:

"The obstruction of the flow of surface water, and the waters of a natural watercourse, are two distinct and very different things, and are attended by entirely different consequences. The former is not actionable while the latter, if resulting in damage to an adjoining land proprietor is actionable. In this State, at least, it is well settled, that the common law rule prevails, and that surface water is regarded as a common enemy, which each landed proprietor may keep off his own premises, event though, by so doing, he may throw or keep it on his neighbors premises." (Citing Edwards v. Ry., 39 S.C. 472, 18 S.E. 58, 22 L.R.A. 246; and Baltzeger v. Ry., 54 S.C. 242, 32 S.E. 358.)

In a note to the case of Gray v. Williams, 21 L.R.A., on page 593, the rule of the common law is thus stated: "The gist of the so-called common law rule is, that one may do as he pleases with his property, regardless of the effect upon surface water. This rule recognizes the right of each proprietor to fight surface water. Jones v. Hanover,55 Mo. 462. And the result is that, if carried to its ultimate conclusion, it simply means that the Courts, will recognize no wrong, in any action undertaken, for the purpose of getting rid of surface water, so that neither its detention, diversion, nor repulsion, is an actionable injury, even though damage ensue. Bowlsby v. Spear, 31 N.J.L. 351, 86 Am. Dec. 216."

The foregoing language is quoted with approval inBaltzeger v. Ry., 54 S.C. 242, 32 S.E. 358.

There are only two exceptions to the rule, that surface water being a common enemy, every landowner may use such means as he may see fit, in dealing with it: (1) "It is subject to the general law in regard to nuisances, if its accumulation has become a nuisance per se, as for example, whether it has become dangerous at all times, and under all circumstances, to life, health, or property." Baltzeger v.Ry., 54 S.C. 242, 32 S.E. 358, and (2) It is an actionable injury, for a person to collect surface water, into an artificial channel, and cast it on another's land, in concentrated form. Brandenburg v. Zeigler, 62 S.C. 18, 39 S.E. 790, 55 L.R.A. 414; and Cain v. Ry., 62 S.C. 25,39 S.E. 792.

There are expressions in the case of Edwards v. Ry.,39 S.C. 472, 18 S.E. 58, which seemingly recognize the principle, that the right of a landed proprietor, to deal with surface water, is dependent upon the absence of negligence, on his part; but the language of the Court in Baltzeger v.Ry., 54 S.C. 242, 32 S.E. 358, explanatory of the doctrine announced in the Edwards case, shows that a person dealing with surface water on his own land, is not bound to exercise reasonable care, with regard to the rights of other landowners.

The ruling of the presiding Judge was unquestionably erroneous, but the respondent's attorneys contend, that the error was not prejudicial, as the Circuit Judge afterwards charged the jury, at the defendant's request, as follows: (1) "The railroad company is not liable for obstructing by embankment, or otherwise, the flow of surface water," and (2) "The railroad company has the right, to obstruct the flow of surface water, and if at the point in question, it has obstructed the flow of surface water, and such is only surface water, then Mr. Touchberry cannot recover in this action."

The case was submitted to the jury, when the Court took a recess for dinner, and at 9 o'clock p. m. the presiding Judge had the jury brought into the court room, and the record shows that the following took place:

"Court (in the absence of the clerk): Have you agreed upon a verdict?

"Foreman: Can't agree.

"Court: Is it a matter of law that is your trouble, or is it a matter of evidence?

"Foreman: We fail to agree, but we would like to have some more instructions, as to the definition as to what is a flowing stream or surface water. I think that hinges the question."

The presiding Judge then charged the jury as requested, and at 9:50 o'clock, they rendered a verdict in favor of the plaintiff for, $500 actual damages.

The only reasonable interpretation of the request made by the jury is, that they properly understood that the element of negligence, was inapplicable to surface water; otherwise it would have made no difference, whether the water obstructed was surface water, or a natural watercourse. Their question shows that their only difference was, as to the law defining a natural watercourse and surface water; and, it will be observed, that they agreed upon a verdict, as soon as the presiding Judge charged them again, in this respect.

These exceptions must be overruled.

What has just been said, disposes of the fourth exception.

The fifth exception cannot be sustained, for the reason that the conduct of the trial, must, necessarily, be left to the sound discretion of the presiding Judge, which it has not been made to appear, was abused in this case.

We proceed to the consideration of the sixth exception.

Without undertaking to point out the particular testimony, sustaining the allegations of the complaint in this respect, this Court is satisfied, that the motion for a new trial, was properly refused.

The seventh exception must be overruled, for the reason that even if there was error, the appellant has failed to satisfy us, that it was prejudicial.

Affirmed.