46 S.C. 15 | S.C. | 1896
The opinion of the court was delivered by
On the 28th. day of May, in the year 1894, the plaintiffs began this action against the defendant in the Court of Common Pleas for Edgefield County, in this State, for $1,950 damages, alleging as a cause of action that twelve or fifteen years ago, the Augusta Canal Company, unlawfully and without the consent of plaintiffs, caused to be built a dam across the Savannah River and upon their said lands, and did wrongfully dig up the same and make large excavations thereon, and built thereon a stone .dam; that said dam being built across said river caused the water therein to be backed up and raised far above its level in the natural flow of said stream, and thereby caused a large portion of the plaintiff’s tract of land, situate in Edgefield County, in this State, and consisting of 835 acres, and which lies next to and adjacent to said river, and which was formerly cultivated, to become so sobbed and saturated by said back water as to be unfit for agricultural purposes, and necessitated the abandonment of the same for planting purposes; and the plaintiffs further charge that the back water . caused in the said river by the erection of said dam has caused a “considerable portion of their said tract of land to be overflowed and rendered useless, and thereby, and on account of said sobbing and overflowing of said lands, deprived the plaintiffs of the use of the same.” The plaintiffs further alleged that the defendant, for the past twelve years, pretends to have acquired said dam, and “that, in disregard of the plaintiffs’ rights, the defendant has ever since entered upon their (the plaintiffs’) said lands, and have, during the
Thereafter the defendant, the city council of Augusta, appeared in said action, and duly answered the complaint on the merits. When the action came on for trial before his honor, Judge Benet, and a jury at the'fall term, 1894,. of the Court of Common Pleas for Edgefield County, the defendant demurred to the complaint on two grounds— want of jurisdiction of the person of defendant, and, secondly, because the complaint failed to state a cause of action. The demurrer was overruled on both grounds. Prom this decision the defendant appealed, and such questions are raised for the decision of this court. We will consider these grounds now.
After the demurrer was overruled, the defendant interposed its answer, which, substantially, lays bare these facts as a defence to plaintiffs’ action. In the year 1845, the legislature of the State of Georgia chartered the Augusta Canal Company, whose object was to lead into the city of Augusta the waters of the Savannah River, and for this purpose a dam was projected into that river to give an im
“Henry H. Townes, (e. s.) Trustee for Sallie V. Townes.
“Chas. Estes, (e. S.) President Augusta Canal Company.”
The defendant’s answer further shows: That the dam was constructed by the Augusta Canal Company in the years 1873 and 1874; that all the privileges set out in the contract by and between Henry H. Townes, as trustee for his wife, Mrs. Sallie V. Townes, of the first part, and the Augusta Canal Company, of the second part, have been accorded to the said Henry H. Townes, as said trustee of his wife during her life, and since her death and up to the attainment of the age of twenty-one years of the plaintiffs respectively, to the said Henry H. Townes as their guardian, and since said plaintiffs have attained their majority, with and to them; that at the present time the plaintiffs are in the enjoyment of the water privileges under said contract; that said dam was constructed without any protest from any of them; that the dam has not injured the lands as complained of by the plaintiffs; that the plaintiffs have not been damaged at all.
Upon these pleadings the parties went to trial. Plaintiffs offered testimony to show their title to land in dispute as devised under the will of their great-grand-father, John Jones; that their mother, Mrs. Sallie V. Townes, died in
While I agree that there was error in refusing the motion for a nonsuit, I am not prepared to hold, either that this court should now order a nonsuit or remand the case to the Circuit Court, with instrv-ctions to grant a nonsuit. On the contrary, it seems to me that the proper course is to reverse the judgment of the Circuit Court, and to remand the case for a new trial, under the authority of the cases of Willis v. Knox, 5 S. C., 474, and Sampson v. Singer Mfg. Co., 5 S. C., 465, in which latter case it is said: “If the nonsuit was improperly refused, and the nature of the plaintiffs’ demand was such that no recovery could be lawfully had, this court will grant the motion, and dismiss the plaintiffs’ complaint. If, however, it was merely a case of insufficienc3’' of proofs adduced at the trial to support a cause of action in itself of a proper legal nature, this court will not dismiss the complaint upon appeal, but order a new tri^l, to afford the plaintiff an opportunity to make better proofs.” These two cases have been recognized in the following subsequent cases: Carter v. R. R. Co., 19 S. C., at page 30; Carrier v. Dorrance, 19 S. C., at page 34; and DeCamps v. Carpin, 19 S. C., at page 126. See, also, Wiggins v. Vaught, Cheves, 91.