Leitzsey v. Columbia Water Power Co. , 47 S.C. 464 ( 1896 )

The opinion of the Court was delivered by

Mr. Justice Jones.

1 This is an appeal from an order sustaining a demurrer to the complaint herein, on the grounds that it did not state facts sufficient to constitute a cause of action. The action was begun August 17th, 1894, to recover damages or compensation for injuries to the lands of plaintiff, situated in Dexington County, caused by a dam erected in 1889 across Broad River by the board of trustees of the Columbia Canal, under authority of an act approved December 24th, 1887. The complaint, which will be set out in full, at least, as to one of the causes of action, in the report of this case, sets up two causes of action — one referring to injuries to an island in Broad River, known as Mickler’s Island; the other to injuries to a tract of 420 acres, lying on the western bank of the river, on which was a branch and a ditch leading to the river, by which, together with the river, this tract had been accustomed to be drained for agricultural purposes. At the hearing, the Court properly took judicial notice of the act approved December 24th, 1887, entitled “An act to incorporate the board of trustees of the Columbia Canal, to transfer to the said board the Columbia Canal, with the lands now held therewith and its appurtenances, and to develop the same,” and of the amendatory act approved December 24th, 1890. The Court also took judicial notice of the fact that Broad River is declared to be a navigable stream and a public highway. To this the plaintiff did not object, and, as appellant, does not object here. These acts and this fact, then, must be read into the complaint as a part thereof. It appears that, under authority of the said act of 1887, the board of trustees of the Columbia Canal completed said dam in 1889, and by authority of the amendatory act of 1890 the trustees, on the 11th of January, 1892, conveyed the canal and dam and the property appurtenant to the defendant company, and the defendant has ever since maintained and continued said dam. The complaint further alleges, substantially, that, by reason of the maintenance of the dam, the water of Broad River at plaintiff’s land is raised six feet in the channel,- thereby obstructing the free and accustomed flow of water and of sand and other sterile earth through the channel of the river and of the branch and ditch, and preventing the proper and usual drainage of these lands, thereby causing the waters to percolate through and water-log and soak these lands; that in times of ordinary freshets the waters of the river are caused to frequently overflow and inundate large portions of said land to such extent as to destroy the crops growing thereon, and wholly prevent the use of said lands for agricnltural purposes; that the keeping up, maintaining, and continuing of the said dam by the defendant have been, and now is, without the consent of the plaintiff; and that the plaintiff has received no compensation- for said injuries. The complaint also shows that on the 2d day of August, 1894, the plaintiff gave defendant notice of said nuisance, and requested the defendant to remove the same; but that defendant has failed and refused so to do. The date of defendant’s refusal does not appear.

In the order sustaining the demurrer, the presiding Judge, Hon. O. W. Buchanan, reserved the right'to file his grounds and reasons for sustaining the demurrer and dismissing the complaint, if he saw fit. These grounds and reasons have not been filed, but it appears in the case, that “the demurrer was sustained upon the several grounds set forth therein.” The demurrer specifying the grounds thereof and appellant’s exceptions to the order sustaining the same will appear in the report of the case.

The demurrer and the exceptions to the order sustaining the same raise practically the following questions:

1. Whether the statute of 1887 gave authority for the acts resulting in the injuries complained of, and afforded therefor a remedy which is exclusive.

2. Whether, assuming the affirmative of the first proposition, the complaint contains any statement of fact, showing a case outside of the application of such provision of law, such as acts of negligence in the construction or maintenance of the dam, or acts in excess of the authority conferred.

3. Distinct from the foregoing, and assuming the right to bring an action at common law, whether the complaint is fatally defective in not stating that plaintiff had been injured by defendant, after notice of the alleged nuisance and demand for its removal.

2 We will consider the last proposition first.- I. It appears that the dam was constructed and the water raised in the channel of the river by the grantors of the defendant. The defendant was not the original creator of the alleged nuisance. “Where a defendant was not the original creator of the disturbance of an easement, an action will not lie against him until he has been requested to remove the cause of the disturbance which is on his land.” Elliott v. Rhett, 5 Rich., 420. In Angell on Water Courses, 403, the same doctrine is announced as follows:' “It has been held ever since Penuddock’s case (15 Rep., 101), that where a party was not the original creator of the nuisance, he must have notice of it, and a request must be made to remove it before any action can be brought-. Where a dam was erected and land in consequence flowed by the grantor of an individual, the grantee will not be liable for the damages in continuing the dam and flowing the land as before, except on proof of notice of damage and of a special request to remove the nuisance.” This rule is based on'the reason that it would be unjust to subject a person, not the creator the nuisance, to a suit for the nuisance of which he was ignorant, and which he did not intend to continue. In this case notice of the nuisance and request for its removal were received by the defendant fifteen days before the commencement of this action. The alleged grievances were caused by the “keeping up, maintaining and continuing the dam.” The natural and accustomed flow of the water, &c., through the channel of the river, of the branch, and of the ditch “has been, aud now is, hindered and obstructed.” The river, branch, and ditch “have been, and now are, prevented and hindered from effecting the proper, natural, and usual drainage of said land;” “the said waters are caused to percolate, &c.” It is clear that the complaint alleges injury after, as well as before, the notice to remove the nuisance, and up to the commencement of the action. It may be that the injury sustained by plaintiff for which action would lie is small, but that was for the jury. We do not think the demurrer could be sustained on this ground.

3 II. Taking up the first proposition stated above. This is the crucial question in the case: Does the act of 1887 provide a remedy for the injuries complained of by plaintiff? Section 2 of this act provides: “That the said board of trustees are hereby authorized and directed, for the development of said canal, to take into their possession the said property, with-all its appurtenances; and for the purpose of navigation, for providing an adequate water power for the use of the penitentiary, and for other purposes hereinafter named, they are hereby authorized, empowered, and directed to improve and develop the same.” Section 3 provides: “That in order to improve and develop the power of said canal for navigation, to furnish the city of Columbia with an adequate supply of water and other hydraulic purposes, they are authorized to construct a dam across Broad River at, above or below the head of the present canal, as, by survey already made or hereafter to be made, may be deemed advisable for the development of the said water power; and in locating and constructing the said dam, they shall have the right to raise the water in the Broad River to such a height as will give a head and fall of thirty-seven feet at the south side of Gervais street at mean low water,” &c. Section 4 provides: “That the said board of trustees shall have the right of way, and the same is hereby granted, in and along said course of the canal, for the construction and operation of the same. If in enlarging and developing the said canal, of in constructing the said dam, it becomes necessary, to use the private property of any person or corporation for that purpose, the said board of trustees, for the sake of the public improvement contemplated in the construction of the said canal, and the better navigation of the Broad River and Congaree River, and the transportation of supplies to market, shall have the right to acquire such right of way in the manner now provided by law.” Appellants contend for a strict construction of this act, and that while the power of eminent domain has been conferred, the manner prescribed for the exercise of it has been carefully and expressly limited to the securing of rights of way, properly so called, along the line of the canal and for the purpose of the construction of the dam.

It is undoubtedly true, as a general rule, that statutes granting power to condemn private property for public use should be strictly construed. This principle was very strongly asserted in Greenville & Columbia R. R. Co. v. Nunnamaker, 4 Rich., 111; but this same case asserts, also, another well settled rule of construction in this language, p. 115: “But in the construction of a charter, when the strict signification of a word is opposed to the apparent intention, it is proper to maintain the design andpurpose of the charter even by neglect of the meaning of the word.” Mr. Endlich, in his work on Interpretation of Statutes, § 343, shows that while the rule of strict construction applies to such statutes, the application of such rule must stop short of “defeating the object of the enactment.” Mr. Black, in his work on the same subject, p. 303, says: that such statutes “are to receive a reasonably strict and guarded interpretation, and the power granted will extend no further than expressly stated, or than is necessary to accomplish the general scope and purposes of the grant.'" So in Ross v. Ry. Co., 33 S. C., 482, Chief Justice Mclver, speaking for the Court, said: “When the legislature granted a charter to the defendant company, authorizing it to construct a railway between the points designated, it must be regarded as having conferred upon said company the right to take and condemn such lands and rights of way as may be necessary to effect the purpose.” This is the rule of construction as applied to such enterprises as railroads, built for private gain, but serving a useful public purpose. The construction of the Columbia Canal was a great public work begun by the State itself for important public purposes, among others, “for providing an adequate water power for the use of the penitentiary,” “to improve and develop the power of said canal for navigation,” “furnishing the city of Columbia with an adequate supply of water.” The State created the board of trustees, giving it large discretionary powers, and directed it to improve and develop the said canal for the purposes named. “The principle of strict construction is less applicable where the powers are conferred on public bodies for essentially public purposes.” Endlich on Int. Stat., § 355. “The right to condemn will be more readily inferred in favor of public corporations exercising powers solely for the public benefit than in favor of private individuals or corporations organized for pecuniary profit.” Eewis Em. Domain, sec. 241. Art. 1, sec. 23, of the Constitution of 1868, under which this case arises, provides: “Private property shall not be taken or applied for public use, or for the us.e of corporations, or for private^use, without the consent of the owner, or just compensation being made therefor: Provided, however, That laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations, and, for works of internal improvement, the right to establish depots, stations, turnouts, etc.; but a just compensation shall, in all cases, be first made to the owner.”

This provision of the Constitution “was inserted for the double purpose of maintaining the sanctity of private property, and, at the same time, promoting internal improvements, especially in respect to rights of way over land, and in establishing stations, &c., to facilitate transportation.” Ex parte Bacot, 36 S. C., 133. The statute in question must be interpreted in the light of the foregoing-principles. ■It is expressly provided in the third section of said act, that in locating and constructing the said dam the board of trustees shall have the right to raise the water in Broad River to a specified height at a given point. This was deemed essential to the development of the canal, which the trustees were directed to do. The right to locate and construct the dam necessarily, and by the terms of the act, includes the right to raise the water in the channel of Broad River. Assuming that plaintiff, as a proprietor on Broad River, a fresh water navigable stream, owned to the middle of the stream, as contended for by appellant, this act, by necessary inference, if not in express words, when it authorized the raising of the water in Broad River to a given height, authorized the entry and invasion of the plaintiff’s land to the extent necessary to maintain such height of water. Now, in the fourth section of the act, the board of trastees is granted necessary right of way “in and along the course of the canal, for the construction and development of the same.” Under the well settled rule of statutory construction, that when the subject matter of an act is clearly ascertained, in order to effect the legislative intent and carry out the general scope and purpose of the act, general words will be restrained and words of narrow signification will be enlarged, a Court would be justified in enlarging the words above quoted, to include, not only lands strictly in and along the course of the canal, but all lands necessary to be used in maintaining the dam, and the specified height of water, which are essential for the development and operation of the canal. But section four goes further, and provides, “if in enlarging and developing the said canal, or in constructing the said dam, it becomes necessary to use private property, &c., the said board of trustees, &c., shall have the right to acquire such right of way in the manner now provided bylaw.” It will be observed, that in sec. 3, the right to raise the water in the river was complied with and made a part of the construction of the dam, and, now, in sec. 4, right to use private property necessary in the construction of the dam is expressly given. Construing the terms used in the light of the manifest purpose of the act, we cannot give them the narrow and restricted interpretation contended for by appellant, limiting right of way to the actual line of the canal, and to the land actually occupied by structure called the dam, but must give them the enlarged meaning indicated above. The real dam is the damming of the water to the specified height, and must include all lands or easements necessary to maintain it. The legislature having directed the development of a great public work, for essentially public purposes, certainly meant to grant all rights, without which the power granted would be worthless. It is contended further, that, granting that the statute of 1887 vests the board of trustees with all the powers conferred by the condemnation statutes of this State, sections 1550 to 1561, General Statutes 1882 (section 1743 to 1755, Revised Statutes 1893), still the defendant could reap no benefit thereby without showing that the provisions of the statute have been called into actual operation, in the manner provided. Sec. 1743 provides: “Whenever any person or corporation shall be authorized by charter to construct * * * a canal * * * in this State, such person or corporation, before entering upon any lands for the purpose of construction, shall give to the owner thereof notice, in writing that the right of way over said lands is required,” &c. It does not appear, on the face of the complaint, that any such notice was given. But in Verdier v. R. R. Co., 15 S. C., 476, it is held that an owner may give permissson to enter for purpose of construction of a highway, without first receiving the notice, and that such may be inferred from facts and circumstances. See, also, to the same effect, Tutt v. Ry. Co., 28 S. C., 400, which was an appeal from an order sustaining a demurrer. The complaint does not show that the plaintiff objected at all to the raising of the water in the river six feet on plaintiff’s banks. This was done, in 1889, by defendant’s grantor, without objection, so far as appears. The allegation of the sixth paragraph of the complaint: “That the said keeping up, maintaining, and continuing of the said dam by the defendant has heretofore been, and now is, without the consent of the plaintiff,” &c., relates to time beginning January 11th, 1892', when the dam, &c., was conveyed to defendant. The first and only evidence of objection was given-on the 2d day of August, 1894, when the notice to remove the nuisance was served. The act authorizing the construction of the dam and raising the water in the river’s channel was a public act, of which plaintiff is presumed to have known. The extensive and permanent character of so large a public work, so near plaintiff’s land, with the manifest and avowed purpose of raising the water on plaintiff’s land, with the inevitable result of interfering with the drainage of lands accustomed to be drained into the river in the territory, necessary to maintain the specified head of water in the river, the immediate increase of the water in the branch and ditch spoken of, the overflow of plaintiff’s land in times of ordinary freshet, must surely have attracted plaintiff’s attention. The entry upon and appropriation of plaintiff’s land for the construction of the dam, was open and patent. The projection and maintenance of the water of the river six feet against his banks above the former level, with its inevitable results, was all the entry and use of plaintiff’s land necessary to be made, and was as effective for the construction of the dam and canal, as an entry by workmen with pick and shovel to dig up the soil would be in the case of constructing a railroad. From the absence of objection, under these circumstances, permission to enter must be inferred. Section 1752, Rev. Stat. 1893, provides for such’a case: “If, in am’- case, the owner of any land shall permit the person or corporation requiring the right of way over the same to enter upon the construction of a highway, without previous compensation, the owner shall have the right, after the highway shall have been constructéd, to demand compensation, and to petition for an assessment of the same in the manner hereinbefore directed: Provided, Such petition shall be hied within twelve months after the highway shall have been completed through his or her lands.” This section has received interpretation in the case of Aull v. R. R. Co., 42 S. C., 436, where Chief Justice Mclver, as the Court’s organ, says: “In sec. 1558 (1752, Rev. Stat.), the word used is ‘permit,’ showing an intention to provide for cases, which oftentimes have occurred, where the railway company, without first obtaining the ‘consent’ of the landowner, either expressly or by presumption, has been suffered or permitted to construct its road over the land of another. * * * If, therefore, a railway company, without first obtaining the consent of a landowner, and without first resorting to the proper proceedings to condemn the land, and have the compensation to which the landowner is entitled ascertained, proceeds to construct its road over the land of another, without objection, or by the implied permission of the landower, such landowner may, at any time within one year after the completion of the road, under the provision of section 1558 (1752), demand compensation in the manner therein prescribed.” It is contended that the right to condemn “lands” does not include such use of, or injury to, the lauds of plaintiff, as complained of in this case; but in Ross v. R. R. Co., 33 S. C., 477, it was held that the word “lands” includes all rights or easements growing thereout. The compensation allowed by the statute is for the right of way, not simply the land. “The act, in effect, defines the term compensation to be the value of the land, together with such special damages as may be sustained by the landowner by reason of the construction of the road through his lands.” Bowen v. Atlantic etc. R. R. Co., 17 S. C., 579. Since the compensation is for the right of way, the right of way must include such use of land as subjects the landowner to any special damage for which compensation is allowed. There is no doubt, that the injuries complained of, in this case, could have been submitted to a jury to assess the amount of compensation, as matter of special damage. Of course, the permission granted by plaintiff to the board of trustees to enter for construction of the dam and appurtenances did not deprive plaintiff of his constitutional right of compensation, for which a remedy was provided; it simply relieved the board of trustees so entering from the character of trespassers. Tompkins v. Railroad Co., 21 S. C., 431. Neither is the defendant grantee a trespasser for continuing the use. The remedy provided by the statute is exclusive. McLaughlin v. R. R. Co., 5 Rich., 584; Fuller v. Eddings, 11 Rich., 239; Verdier v. R. R. Co., 15 S. C., 483; Sams v. R. R. Co., 15 S. C., 487; Ross v. R. R. Co., 33 S. C., 477.

4 III. Notwithstanding the legislature authorized the erection of the dam, and the raising of the water in the river, and provided an exclusive remedy to enable plaintiff to secure compensation for the “lands” taken, and special damages, nevertheless, an action at common law would be sustained for any injury resulting from negligence in the performance of authorized acts, as compensation for injury from such a cause was not contemplated by the legislature. The complaint, however, contains no allegations to bring the case within this rule. Wallace v. R. R. Co., 34 S. C., 66, is in point here: “There must be some allegation of fact showing that the defendant, in doing the act which it was authorized to do, has either wantonly or through negligence done the act in such a manner as unnecessarily impaired or injured the rights of the plaintiff. * * * The wrong, if any, which was done to the plaintiff by the defendant did not consist in constructing its roadbed over streams flowing through the lands of the plaintiff, for that it had a legal right to do; nor did it consist necessarily in the fact that the natural flow of the water was obstructed, for that may have been the inevitable and unavoidable consequence of the construction of - the railroad; but it may have consisted in the unskillful or negligent manner in which the work was done.” Authorities on this subject are numerous. The point is tersely stated in Watts v. Norfolk &c. R. R. Co., 19 S. E. Rep., 523: “The grant is a defense as to all acts done within it, not outside of it.” “Neither a right of way conferred by grant nor one conferred by condemnation will give exemption from damages consequential upon the improper or negligent exercise of the rights, and not from the fair, proper, and reasonable exercise of it, for the reason that neither in making such grant nor in the assessment upon an inquisition are damages contemplated or included that are to be solely attributed to such misuse of the right.”

"The demurrer was properly sustained, upon the grounds discussed in the second and third propositions above stated.

The judgment of the Circuit Court sustaining the demurrer and dismissing the complaint is affirmed.