Webb v. Greenwood County , 229 S.C. 267 ( 1956 )

229 S.C. 267 (1956) 92 S.E.2d 688

JOHN S. WEBB, Appellant,
v.
GREENWOOD COUNTY, Respondent.

17152

Supreme Court of South Carolina.

May 1, 1956.

Messrs. Pope & Greene, of Newberry, and Griffith, Coleman & Griffith, of Saluda, for Appellant.

Messrs. Grier, McDonald, Todd & Burns, and G.P. Callison, of Greenwood, for Respondent.

The Order of Nonsuit of Judge Greneker follows:

This is an action, characterized by plaintiff's counsel, as a cause of action for damages for the alleged permanent taking of plaintiff's property, within the meaning of Article 1, § 17 of the Constitution of South Carolina, as a result of the erection and operation of the defendant's dam and hydroelectric plant on Saluda River. This project, built and operated by Greenwood County was erected and is operated pursuant to legislative authority and also pursuant to a permit from the Federal Power Commission.

The plaintiff, John S. Webb, owns two tracts of land on Saluda River in Saluda County, near Chappells, South Carolina. These tracts are located about five and eight miles respectively below the dam which creates Lake Greenwood.

In essence, the plaintiff's claim is for alleged consequential damages resulting from the control of the flow of the waters of Saluda River by the defendant, Greenwood County, in the construction and operation of the project. Plaintiff's counsel contend most forcibly and stress that this is a single cause of action for a permanent damage or taking, and concede there is no element of improper or negligent operation. On the contrary, it is their argument that the ordinary and normal operations of the hydro-electric plant have resulted in the damages here complained of. There is no suggestion of an abatable nuisance but rather of a permanent taking resultant from ordinary day by day operations.

It appears that the cycle of power generation governed by the daily cycle of demand for electricity causes the level of the water in the Saluda River to rise and fall within the banks in a daily and weekly pattern. This makes the problem of plaintiff's cattle drinking in the river more hazardous as the banks on his tracts are steep. Cattle are caught in the stream by rising water and must be extricated. More emphasis was placed upon the effect upon the watering of cattle in the stream and of the cattle being either unable to get to the water or being caught by rising water than any other phase of injury. Proof was offered that the water flows faster and collects mud from banks in the stream bed and when the water overflows the banks, there is deposited upon the grass on plaintiff's pastures, an undesirable mud which causes cattle to refuse to graze on it until the mud is washed off by rain. No damages are claimed for erosion of banks as such.

It was testified that there is a ditch or low place on plaintiff's land that runs from an area behind one of his pastures into the river and that the raising and lowering of the water daily, "like clockwork" as described by the plaintiff, causes the water to back up this ditch or slough and cut off the cattle in the pasture from the remainder of the farm.

Plaintiff testified that there were fewer overflows and the crest of those was lower in general since the plant has been operated by the defendant, but that since the dam was built overflows occur some time when there has been no rain on the farm.

This testimony was composed of comparisons of conditions before and after the operation of the hydro-electric plant. No specific instances were described. Testimony as to damages were practically all related to before and after the structure.

The dam and plant were built in 1940 pursuant to a permit of the Federal Power Commission. No evidence was offered to show it had been altered in structure or mode of operation since it was built.

Upon the close of plaintiff's case, defendant moved for an Order of Non-Suit based upon the following grounds.

First, that the action is barred by reason of the six-year Statute of Limitations pleaded by the defendant for the reason that the right of action, if any, accrued more than six years prior to the commencement of the action.

Second, the Statute of Limitations bars recovery for any taking or damages occurring more than six years prior to the commencement of this action, even if this were a continuing nuisance.

Third, that Saluda River is at the points in question a navigable stream of the State of South Carolina, and by reason of the approval of this public use of such stream by the State of South Carolina, the control of the flow within the banks is an exercise of the dominant servitude in the State and if injuries result to a lower riparian owner, such is damnum absque injuria.

Defendant also stated that if the above grounds were not sustained, there were other alternate grounds which would then be asserted.

In view of the decision upon the first ground stated above, it will not be necessary to develop the other two although they appear to be sound.

The Statute of Limitations for damage or injury to real estate is six years. Code of Laws of South Carolina 1952, § 10-143. Plaintiff takes the interesting position that since the taking of private property for a public use without just compensation is prohibited by the Constitution of South Carolina, Article 1, § 17, no Statute of Limitations can be imposed by the Legislature of South Carolina, as such an act would cut into the Constitutional grant. It is urged by Plaintiff's counsel that the decision in Chick Springs Water Company v. State Highway Department, 1930, 159 S.C. 481, 157 S.E. 842 implies that, since the section is self-executing, any conditions upon its exercise are invalid and cities Oklahoma City v. Wells, 1930, 185 Okl. 369, 91 P. (2d) 1077, 123 A.L.R. 662 as further authority. In the Chick Springs case, the Court held the statute, requiring notice before suit and providing only a limited amount of recovery, to be inapplicable to the action as that statute was designed for those cases where a plaintiff has been granted permission to sue the State for tort arising out of a defect in the highways. It pointed out, of course, that the State could not limit the amount of recovery in a "taking" case since the Constitution guaranteed "just compensation". However, the type of notice there involved was a prerequisite to suit, not a passive limitation setting forth a reasonable time within which self-executing right could be enforced.

The Oklahoma City case and others cited in the annotation therein, related entirely to the problem of whether or not a statutory proceeding for compensation for a direct appropriation of private property is an "action" so as to be governed by a general Statute of Limitations. That case involved a proceeding for a "taking" by eminent domain, the grounds being a statutory proceeding for compensation. The present case is a suit for a "taking" by consequential damages resultant from the building and ordinary operation of the project several miles upstream.

The plaintiff's position is clearly outlined and distinguished in Stranaham v. City of Havre, 1941, 112 Mont. 591, 119 P. (2d) 629, 139 A.L.R. 1286 and annotation at page 1288. There the suit was for a constitutional "taking" by consequential damages, and it held that unlike the type of proceeding in the Oklahoma City case, the Statute of Limitations here was not a prerequisite to suit but rather a Statute of repose as are all ordinary Statutes of Limitations, and as such, affects the remedy only and not the right itself, and is not prohibited by the Constitution. The Court said:

"As to the application of the ordinary statutes of limitation in actions for consequential damages as a result of taking or damaging property for public use, there are cases cited from 29 states in the annotation in 30 A.L.R. 1190. Among those cases are many dealing with the application of statutes of limitation under facts similar to those here. In those cases limitation statutes are applied in many cases where property has been damaged as a consequence of a taking of adjacent property for public use. In none is the statute of limitations declared to be in contravention of the Constitution."

The annotation referred to in the opinion is further elaborated by many subsequent decisions to the same effect in 139 A.L.R. 1288.

The general law as to the application of the Statute of Limitations to an action of this type is quite clear, but it is unnecessary to go beyond our own cases to decide this issue. This has been developed here at some length only because of the position of plaintiff's counsel that our cases do not apply. Conestee Mills v. City of Greenville, 1931, 160 S.C. 10, 158 S.E. 113, 75 A.L.R. 519, was brought by a lower riparian owner against the City of Greenville for a continuing nuisance due to the dumping of raw sewage into the stream and polluting the same, to such an extent as to constitute a "taking". The Court held these acts by the City of Greenville were negligent and could be abated, and it could not be presumed that the City would continue such a negligent nuisance, and, therefore, that successive actions may be brought for the subsequent continuance of the wrongful or abatable nuisance.

In answer to the position that the Statute of Limitations barred any recovery, the Court held that the nuisance being an abatable one was not presumed to continue; that each injury was a new cause of action and, therefore, all occurrences more than six years prior to the commencement of the action were barred. This is a clear holding of our Supreme Court that the six-year Statute of Limitations applies to a consequential "taking" brought under the self-executing provision of the Constitution, and sound reasoning supports such holding. There is universal acceptance of the logic of Statutes of Limitations that litigation must be brought within a reasonable time in order that evidence be reasonably available and there be some end to litigation. Not only do such statutes apply to suits against the State but also to suits brought by the State.

The plaintiff asserts that the Conestee Mills case does not involve a constitutional "taking" but rather a nuisance. "An overriding principle of law of this State * * * is that a municipality is a subdivision of the State for governmental purposes and partakes of the State's immunity from suit in tort except as expressly permitted by statute and, of course, except for liability under self-executing constitutional provision." Hill v. City of Greenville, 1953, 223 S.C. 392, 76 S. E. (2d) 294, 299. The action in the Conestee Mills case was not under any Statute permitting such suit, but was clearly under the self-executing constitutional provision, and the Statute of Limitations was applied there.

The plaintiff testified that he first noticed the injuries now complained of in 1940; that he lost fifteen or more head of cattle between 1940 and 1946 due to the operations of the power plant; that the ordinary raising and lowering of the water in the banks in the daily cycle of operations causes water to back up in the slough or ditch, thereby cutting off his cattle on his pastures from access to the rest of the farm; that such ordinary operation has caused such cattle to be caught in the stream on rising water since 1940; and that the rising water within the banks has prevented his cattle daily since 1940 from going down into the water to drink.

The plaintiff's proof, both as to injuries and damages has been for a permanent taking of his lands and demands damages past, present and prospective. In fact, plaintiff's counsel insisted in argument that no negligence is asserted here but rather a permanent taking resulting from a permanent structure, ordinarily operated, under its permit from the Federal Power Commission. No proof of negligent operation was offered. This appears to be well pleaded and sets forth one cause of action for a "taking" as outlined by our Supreme Court in Rice Hope Plantation v. South Carolina Public Service Authority, 1950, 216 S.C. 500, 59 S.E. (2d) 132, 140, where the Court said "If the injury complained of is of a permanent character, then it follows that the plaintiff has a single cause of action which cannot be split". This is likewise implied in the opinion of the Court in Shonnard v. South Carolina Public Service Authority, 1950, 217 S.C. 458, 60 S.E. (2d) 894, and is in accord with the recognized rule that "a single action only may be maintained for all damages present and prospective caused by a permanent structure, properly built, properly maintained, and not abatable * * *." 1 C.J.S., § 104, p. 1336. The defendant's project is, of course, a permanent and lawful structure, fully authorized to be constructed and operated by the public acts of South Carolina. The project works are permanent, open and apparent, authorized and directed by law and are not subject to abatement. The injuries complained of are the ordinary results of the regular routine operation of the project.

From plaintiff's clearly stated position in argument before this Court, from his proof and from a study of the law, it is obvious that the plaintiff presents one cause of action for a permanent "taking" of his lands. The remaining question resolves itself into the "time of taking". Plaintiff cites U.S. v. Dickinson, 1946, 331 U.S. 745, 67 S. Ct. 1382, 91 L. Ed. 1789 and King v. United States, C.C. 1893, 59 F. 9, which were both brought in a Federal Court against the United States for backing up water and overflowing lands, the cases being founded upon the Fifth Amendment of the U.S. Constitution, and brought pursuant to the Tucker Act, a Federal Act for such recovery. The Federal rule as to what constitutes a "taking" under the Fifth Amendment is far more stringent upon the riparian owner and, therefore, the Federal rule as to when a "taking" is accomplished in order to commence the running of the Statute of Limitations is much more lenient upon this owner.

For this significant difference see Nichols on Eminent Domain, Third Edition (1950) Section 6.4432(1) which says in part, "Under the provision for ``taking' only, ``consequential' damages are generally not compensable since such loss is deemed to be damnum absque injuria" (citing scores of Federal cases). On the other hand, South Carolina has taken the broadest possible view of "what is a taking" and has construed the least actual "damage" to be a "taking" as distinguished from the Federal rule, and that of many states, in making a distinction between "taking" and "damage". See 18 Am. Jur. 756 Eminent Domain § 132. "Indeed damage alone may constitute a taking". Wilson v. Greenville County, 1918, 110 S.C. 321, 96 S.E. 301, 304; White v. Southern Ry. Co., 1927, 142 S.C. 284, 140 S.E. 560, 57 A.L.R. 634. This very broad interpretation of a "taking" necessarily affects the time when the Statute of Limitations begins to run, for the obvious reason that a "taking" occurs when a legal remedy is available. The cases relied upon by the plaintiff are a statement of the Federal rule against the United States Government and wholly inapplicable to the case at bar which asserts a taking under the South Carolina Constitution, enforceable in a South Carolina Court which is governed by our decisions. The reasoning of our cases is clearly outlined in Gasque v. Town of Conway, 1940, 194 S.C. 15, 8 S.E. (2d) 871, 873; when the Court said:

"The Constitution of this State (Art. 1. Sec. 17) provides that ``private property shall not be taken * * * for public use without just compensation being first made therefor.'

"In construing this provision of the Constitution, we have held, along with many other Courts, that an actual physical taking of property is not necessary to entitle its owner to compensation. A man's property may be taken, within the meaning of this provision, although his title and possession remain undisturbed. To deprive him of the ordinary beneficial use and enjoyment of his property is, in law, equivalent to the taking of it, and is as much a ``taking' as though the property itself were actually appropriated.

"Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys one or more of these elements of property to that extent destroys the property itself. It must be conceded that the substantial value of property lies in its use. Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689. If the right of use be denied, the value of the property is annihilated, and ownership is rendered a barren right.

"The constitutional prohibition against taking private property for public use without just compensation must have been intended to protect all the essential elements of ownership which make property valuable, including, of course, the right of user, and the right of enjoyment. Accordingly, it has been held that the erection and maintenance of a public work or enterprise under lawful authority in such a way as to destroy the beneficial use of adjacent land or property may constitute a taking, although there is no physical invasion of the property itself.* * *"

As outlined in the Conestee Mills case, supra [160 S.C. 10, 158 S.E. 115] the "cause of action arises when the first injury occurs." The Statute of Limitations begins to run from the time of the first injury or damage. This is the settled law of South Carolina and governs this case. (It is interesting to note that the Dickinson case, supra, cited by Plaintiff clearly recognizes the validity of a general Statute of Limitations upon the enforcement of the constitutional right.)

When was the time of the first injury? Of course, it does not follow that the completion of the dam and the first operation in 1940 is the date of the injury but, that time is rather the date of the cause of the first injury. However, the testimony of the plaintiff himself is so replete with accounts of injuries suffered between the erection of the project and April, 1946, which was six years prior to the commencement of the action, that it is inescapapable that the Statute commenced to run several years prior to 1946 and the action is therefore barred. This action was brought almost twelve years after the operation of the project commenced. The very nature of the rise and fall of the water within the banks in a daily and weekly pattern is implicit in the operation of a hydro-electric plant and obviously was present from a time shortly after operations began in 1940. The plaintiff stated he noticed damages first in 1940.

This case has occasioned the Court much study and analysis, and there appears no other conclusion but that this action for a permanent taking is barred by the six year Statute of Limitations, and, therefore, for the reasons outlined above, the defendant's motion for an Order of Non-Suit is hereby granted.

May 1, 1956.

G. BADGER BAKER, Acting Associate Justice.

Plaintiff-appellant is the owner of two tracts of land, bordering Saluda River in Saluda County. The two tracts are used for farming, growing timber and pasturage purposes. In 1940, the County of Greenwood constructed a hydroelectric plant, about five miles upstream, at a point commonly known as Buzzard's Roost, and as a necessary reservoir of water supply the County created Lake Greenwood.

In May of 1952, appellant brought this action against the respondent, County of Greenwood, alleging an unlawful use of Saluda River by (1), the discharge of unusual quantities of water at unexpected times and irregular intervals (2), the flooding of his lands (3), the creation of dangerous and hazardous conditions for his cattle, and (4), the deposits, by the flood waters, of injurious silt and mud upon his fields, which has materially reduced the value of his property for agriculture and pasturage, thereby taking his property for public use without just compensation being first paid therefor.

Respondent, in its answers, admitted the construction of the hydroelectric plant, the creation of Lake Greenwood, but denied that appellant's lands have been damaged by reason of its operation of the project, and alleged three "immunity defenses": a license from the Federal Power Commission, navigability of Saluda River, and acts of God. The fifth defense in the answer "specifically pleads the Statute of Limitations as a bar to this action for any acts or damages occurring more than six (6) years prior to the commencement of this action." Prior to the trial of the case respondent, on motion, was permitted to amend its fifth defense so as to plead the Statute "as a bar to any acts or damages of any kind or nature," which, in effect, is identical in substance to its original plea; and, further, respondent was permitted to add a sixth defense of the Statute of Limitations, which is nothing more than a reassertion of the plea as originally alleged and amended. Very probably the amendment was urged as a measure of precaution rather than of necessity from any deficiency in pleading, and, of course, properly allowed.

At the trial of the case appellant, and his witnesses, described the condition of his lands prior to the erection of the hydroelectric structure, the depreciated condition thereafter, and the elements of reduced value comprising just compensation, the relief demanded. There is present the requisite evidence of the release of the impounded waters at irregular intervals, the force thereof, the overflow of the banks of Saluda River, the flooding of appellant's lands and the deposit of damaging mud and silt. Discussion of the evidence in detail or effect is unnecessary since the question or questions presented on appeal are legal and not factual.

When appellant rested his case, respondent moved for a nonsuit, upon several grounds, which motion was granted on the basis that appellant's cause of action is for a permanent taking, resulting from ordinary day by day operations of the project, and is barred by the Statute of Limitations since the taking was effective several years prior to 1946.

The trial Judge, Honorable T.B. Greneker, at the time of ordering the nonsuit, stated he would prepare and file a written order containing his reasons for his decision on the motion. A comprehensive order was thereafter issued, from which this appeal is taken, although in point of time the appeal relates back to time of trial.

Judge Greneker discusses the various problems or issues presented in the case and bases his conclusion upon the application of the Statute of Limitations on the following points:

(1) The hydroelectric installation, its structures, dam and reservoir, is permanent, open and apparent, authorized and directed by law, and not subject to abatement;

(2) Appellant's claim is for consequential damages constituting one cause of action for a permanent taking of his lands, without any element of improper or negligent operations, or abatable nuisance, but is the result of ordinary and normal functional performance of the project;

(3) South Carolina, in its construction of Article I, § 17, Constitution of 1895, does not recognize a distinction between "taking" and "damaging," but holds that a deprivation of the ordinary beneficial use and enjoyment of one's property is equivalent to the taking of it, and is as much a "taking" as though the property were actually appropriated, citing Wilson v. Greenville County, 110 S.C. 321, 96 S.E. 301; White v. Southern Ry. Co., 142 S.C. 284, 140 S.E. 560, 57 A.L.R. 634; Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689; Gasque v. Town of Conway, 194 S.C. 15, 8 S.E. (2d) 871;

(4) The Statute of Limitations is a statute of repose, affects the remedy, not the right, and its application is not in contravention of Article I, § 17, and therefore is operative against a consequential taking;

(5) Our broad interpretation of a "taking" affects the time when the Statute begins to run, "for the obvious reason that a ``taking' occurs when a legal remedy is available," and since the cause of action arises when the injury, damage or taking occurs, the Statute is operative from the time the permanency and extent thereof is, or should be, known to the landowner;

(6) The application of the Statute is not affected by the permanency of the taking, whether it is permanent or temporary;

(7) However, temporary successive takings are not presumed to continue, and each injury is a new cause of action, barred when its occurrence is more than six years prior to the institution of an action, citing Conestee Mills v. City of Greenville, 160 S.C. 10, 158 S.E. 113, 75 A.L.R. 519;

(8) Appellant, prior to 1946, became fully aware and comprehended the extent, of the taking, but did not bring his action until May of 1952, and was therefore barred by the Statute of Limitations.

The order of Judge Greneker, logical, well written, amply supported by authorities, and as already stated, comprehensive, will be reported. The various exceptions thereto have been condensed into two questions, with three sub-sections to Question 1, as follows:

"I. Is a Statute of Limitations a bar to recovery of the compensation guaranteed a private landowner by Article 1, Section 17, of the State Constitution of 1895 where private property is taken for public use?

"A. Can a landowner's constitutional right to compensation for property taken for public use be barred by adverse possession of less than the prescriptive twenty-year period?

"B. Does the six-year Statute of Limitations apply in an action for compensation for private property taken for public use?

"C. Does South Carolina make a distinction between a direct taking and a taking as a result of consequential damages?

"II. Does the navigability of the Saluda River constitute a defense to an action for damages sustained by a landowner above high water mark?"

Although the order of nonsuit is sufficient unto itself, it may not be amiss to briefly refer to one of the points presented in the Questions. Question I(A), raises the issue that appellant's action cannot be barred except by prescriptive use. This contention is supported by the text in 18 Am. Jur., Eminent Domain, Sec. 394, page 1042, but not pertinent to the situation or case under review:

"When a special remedy is provided by statute for the recovery of compensation for land taken by eminent domain, and no time limit for instituting such proceedings is fixed, according to the weight of authority the general statute of limitations for bringing a civil action is not applicable, and it is only after the expiration of the period necessary to acquire land by adverse possession that an owner who has allowed his land to be taken without applying for compensation is held to have lost his rights."

When an ordinary civil action is employed the controlling principle is different, as written in the same volume of Am. Jur., Sec. 395, page 1044;

"In jurisdictions which allow permanent damages to be assessed as of right in action at common law for the erection of a public work of a permanent character, without condemnation proceedings by a corporation clothed with the power of eminent domain, it is clear that after the expiration of the statutory period in ordinary civil actions the right to recover for the construction or maintenance of such a work is lost."

The exercise of the mode of condemnation, as permitted Greenwood County, is under and pursuant to the general proceedings of law relating to condemnations in the exercise of the right of eminent domain, Greenwood County v. Watkins, 196 S.C. 51, 12 S.E. (2d) 545. This is not an action to compel Greenwood County to assess damages, as in the case of Godwin v. Carrigan, 227 S.C. 216, 87 S.E. (2d) 471, wherein it was held that the statute of limitations does not apply to a proceeding in mandamus. No special procedure is invoked by appellant, but he has brought his action at common law for compensation provided by the Constitution as a result of the permanent damages to his property which constitute a taking.

The test is not whether the claim is for a direct taking or consequential damages, for, as pointed out by Judge Greneker, "South Carolina has taken the broadest possible view of ``what is a taking' and has construed the least actual ``damage' to be a ``taking'." The test is whether the claim is asserted under a special proceeding, or special remedy, or is the claim under the Constitution, in an action at common law and governed by a general statute of limitations.

The last question relates to the refusal to strike respondent's third defense from its answer, which is as follows:

"That Saluda River is a navigable waterway of the State of South Carolina and the defendant's project erected thereon has been specifically authorized by the State of South Carolina, and that any rise and fall within high water mark of the stream therefrom results in no lawful injury to the plaintiff."

This exception or question has now become academic, by reason of the affirmance of the order of nonsuit. However, the rights of the individual and the sovereign power are fully discussed in Cape Romain Land & Improvement Company v. Georgia-Carolina Canning Company, 148 S.C. 428, 146 S.E. 434; Rice Hope Plantation v. South Carolina Public Service Authority, 216 S.C. 500, 59 S.E. (2d) 132; Early v. South Carolina Public Service Authority, S.C. 90 S.E. (2d) 472.

Appellant's exceptions are dismissed, the order of the trial Court affirmed and directed to be reported herewith and adopted as part of this opinion.

STUKES, C.J., and TAYLOR, OXNER and LEGGE, JJ., concur.