Belton v. Wateree Power Co. , 123 S.C. 291 ( 1922 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] December 29, 1922. The opinion of the Court en banc was delivered by Action for $2,000.00 damages on account of injury alleged to have been sustained by the erection of a certain dam across the Wateree or Catawba River at Getty's Shoals. It is alleged that the dam raised the water in the channel of the river and the streams, ditches, drains, and hollows upon the plaintiff's land, throwing it back upon the bottom land, obstructing the natural drainage, and injuring it for agricultural purposes; and that the backwater caused the formation of pools and stagnant water on or near plaintiff's land, providing a breeding place for mosquitoes of the malaria-bearing species, which have caused the tenants upon the place to become sick, thereby creating health conditions which render the land unfit for residential purposes and greatly depreciating its value.

From a judgment in favor of the plaintiff, the defendant has appealed.

There was no evidence at all tending to sustain the allegation of injury to the plaintiff's land by backwater upon his bottoms. He lived about a mile and a half from the pond, and the nearest point on his land was half a mile from the pond. He testified:

"I have some bottom land on all the creeks. There has been no water on it, no more than where you come to these big rains and the creek would overflow. It does not overflow now, not more than when the pond was not there."

So that his case is to be considered with reference only to the allegation that the pond caused stagnant pools which bred malarial mosquitoes, causing sickness, the removal of his tenants, and consequent depreciation of the value of his land.

One of the plaintiff's witnesses testified that he had made a careful investigation and search for the malaria-bearing mosquitoes about plaintiff's premises, found practically none in the pond, but "we went to the spring about 150 yards north of the house, and in this branch we found mosquitoes; the Anopheles (malaria-bearing) mosquitoes breeding in profusion" (Dr. Hamilton). Other witnesses gave testimony tending to show that the pond greatly increased the prevalence of mosquitoes in the immediate locality, and in this discussion that fact may be assumed. That the prevalence of the pest was not confined to the plaintiff's premises, but extended generally to all within a radius of a mile and a half from the pond, is shown by the testimony of the witnesses for the plaintiff: Dave Robertson: "After the dam was closed and the pond put there, there was plenty of chills and fever. It was from house to house"; that he lived 1 1/2 miles from plaintiff and had malaria after the pond was created though he had had none before; that John Belton a mile away also had had sickness. Major Bush lived three-quarters of a mile from plaintiff and had had it under similar circumstances; had heard of several others in the neighborhood being taken sick. A.W. Mathewson: "Knew of other cases of malaria all around down there everywhere"; he lived a mile from the pond and had chills and fever on his place; never heard of malaria there before the pond was there; that parties living on the highest hills in Fairfield County were having chills on the Longtown road two miles from his house; heard different ones say that they could hardly rest at night for mosquitoes. Dr. Douglas: Had been going down there since 1919 when dam was closed, treating malaria. The questions put to Dr. Douglass by the attorneys for the plaintiff indicate their conception of the situation:

"If you had found down on this river, before the pond was put there, that there was very little malaria, and that malaria was only occasional on the river, and after this immense pond was put there you found all the neighborhood had malaria, what would you say caused it?" "If you find a large area of water like they have out here on the Wateree River when that pond is up, malaria is prevalent, everybody in the neighborhood having it one year when the pond is up, the whole region around there is flooded, etc.?"

Dr. Hamilton: "A portion of that section lies along the pond. Its proximity extends as far back as eight miles of the pond on the branches and creeks running in and out of the pond. Malaria was prevalent there last year."

The testimony for the plaintiff thus showing that the activities and effects of the mosquitoes were not confined to the premises of the plaintiff, but were prevalent in that whole community, it has been demonstrated that the damage suffered by the plaintiff was not peculiar to himself. It shows that the nuisance was a public nuisance and not a private nuisance, and the law is well settled that the plaintiff is not entitled to damages for an injury resulting from a public nuisance unless his injury is not only different in degree but different in kind from that suffered by the public generally, or that the nuisance has been caused by the negligent conduct of the defendant.

The following principles have been established beyond controversy:

1. If the act claimed to have been noxious to the plaintiff was authorized by the Legislature, it cannot be considered a public nuisance, and the plaintiff can recover damages only upon the theory that the injury was caused by the negligent exercise of that legally authorized act. Wallace v. R. Co., 34 S.C. 62; 12 S.E., 815.

2. If the act claimed to have been noxious to the plaintiff constituted a public nuisance, the plaintiff can recover damages only upon the theory that the injury sustained by him was different not only in degree but in kind from that suffered by the public generally.

3. If the act claimed to have been noxious to the plaintiff resulted in an injury peculiar to him, some special inconvenience or discomfort not experienced by the public at large, the defendant cannot invoke the protection of any statute purporting to authorize the act, for it would be in violation of the Constitution, which forbids the taking of private property for public use without just compensation.

The case of Richards v. Washington Terminal Company,233 U.S. 546; 34 Sup. Ct., 654; 58 L.Ed., 1088; L.R.A. 1915A, 887, is an exceedingly interesting one, and particularly instructive in the present emergency, for the reason that it contains a clear differentiation between items of damage common to the public generally, and those peculiar in kind suffered by the plaintiff; the complaint claiming damages on account of each. The facts were as follows:

The terminal company owned the tunnel which extends from one side of Washington to the other, passing under the Capitol and the Library grounds. It also owned the double track therein, its ownership of it ceasing at the south portal or mouth of the tunnel. The tunnel and tracks were built upon property acquired by purchase or condemnation proceedings and were constructed under authority of the Acts of Congress and of permits issued by the municipal authorities. The plaintiff owned a house a little over 100 feet from the south portal of the tunnel. His action was: (1) For the injury to his premises by the volumes of dense black or gray smoke, and also by dust and dirt, cinders and gases emitted from the trains while passing over the tracks in and out of the tunnel, or standing upon the tracks near the signal tower. (2) For the injury to his premises by the gases and smoke emitted from locomotive engines while in the tunnel and forced out of it by means of the fanning system through the portal located near to plaintiff's property.

As to the first ground of alleged damage the Court held that the plaintiff was not entitled to recover, declaring:

"The Acts of Congress referred to, followed by the construction of the tunnel and railroad tracks substantially in the mode prescribed, had the effect of legalizing the construction and operation of the railroad, so that its operation while properly conducted and regulated, cannot be deemed to be a public nuisance. * * * Railroads constructed and operated for the public use, although with private capital and for private gain, are not subject to actions in behalf of neighboring property owners for the ordinary damages attributable to the operation of the railroad, in the absence of negligence. Such roads are treated as public highways, and the proprietors as public servants, with the exemption normally enjoyed by such servants from liability to private suit, so far as concerns the incidental damages accruing to owners of nonadjacent land through the proper and skillful management and operation of the railways. Any dimunition of the value of property not directly invaded nor peculiarly affected, but sharing in the common burden of incidental damages arising from the legalized nuisance, is held not to be a ``taking' within the constitutional provision. The immunity is limited to such damages as naturally and unavoidably result from the proper conduct of the road, and are shared generally by property owners whose lands lie within range of the inconveniences necessarily incident to proximity to a railroad. It includes the noises and vibrations incident to the running of trains, the necessary emission of smoke and sparks from the locomotives, and similar annoyances inseparable from the normal and nonnegligent operation of a railroad. * * * That the constitutional inhibition against the taking of private property for public use without compensation does not confer a right to compensation upon a landowner no part of whose property has been actually appropriated, and who has sustained only those consequential damages that are necessarily incident to proximity to the railroad."

As to the second ground of alleged damage, the Court held that the plaintiff was entitled to recover, that is, for the damages caused by the gases and smoke emitted from engines while in the tunnel, and forced out of it by means of the fanning system through the portal located practically at the plaintiff's door. The basis of the liability was distinctly placed upon the fact that the plaintiff had suffered special inconvenience and discomfort, a burden direct, not experienced by the public at large, and unnecessarily imposed. The Court cites and relies upon the case of B. P.R.R. Co. v.Baptist Church, 108 U.S. 317; 2 Sup. Ct., 719;27 L.Ed., 739, and says, commenting on it:

"While recognizing that the Legislative authority for operating a railway carried with it an immunity to private action based upon those incidental inconveniences that are unavoidably attendant upon that operation of a railroad, nevertheless [the Court] sustained the right of action in a case where a building for housing and repairing engines was unnecessarily established in close proximity to a place of public worship" so that the noises and other incidents of its operation created a constant disturbance of the religious services.

The reasoning of the Court is not quite clear upon the element of necessity. They say that the doctrine of immunity being founded upon necessity is limited accordingly, and quote from the Baptist Church case in which the liability is apparently placed upon the fact that it was not necessary that the house be placed in that exact location; and at the same time declare that "this circumstance, however, does not, as we think, afford sufficient ground for a distinction affecting the result." The necessary effect of this ruling is to relegate both cases to the common ground of a direct, peculiar, and substantial burden imposed upon the plaintiff, not experienced by the public at large.

The Court further declares:

"If the damage [that is, I assume, the damage of a direct, peculiar and substantial burden] is not preventable by the employment of reasonable expense of devices such as have been suggested [the installation of ventilating shafts or other devices ``for preventing the outpouring of gases and smoke from the entire length of the tunnel at a single point upon the surface' which constituted a direct, peculiar and substantial injury of the plaintiff], then plaintiff's property is ``necessary for the purpose contemplated,' and may be acquired by purchase or condemnation, * * * and pending its acquisition defendant is responsible. If the damage is readily preventable, the statute furnished no excuse and defendant's responsibility follows on general principles" — a declaration entirely true if the injury to the plaintiff was the result of the nuisance, direct, peculiar, and substantial, but not at all applicable if the injury was the result of a public nuisance legalized by the Act, as the Court had already determined in reference to the alleged ground of damage founded upon the "volumes of dense black or gray smoke" and the "dust and dirt, cinders and gases, emitted from the trains while passing over the tracks and in and out of the tunnel or standing upon the tracks near the signal tower."

This is in entire accord with the decisions of this Court.

In Steamboat Co. v. R. Co., 46 S.C. 327;24 S.E., 337; 33 L.R.A., 541; 57 Am. St. Rep., 688, the Court reaffirmed the following quotation from Steamboat Co. v. R. Co., 30 S.C. 539; 9 S.E., 650; 4 L.R.A., 209; 14 Am. St. Rep., 923:

"That the injury must be particular — as several of the cases express it, ``special or peculiar' — must result directly from the obstruction [nuisance] and not as a secondary consequence thereof, and must differ in kind, and not merely in extent or degree, from that which the general public sustains."

In Cherry v. Rock Hill, 48 S.C. 553; 26 S.E., 798, which was an action by an individual for damages on account of an alleged nuisance, the Court said:

"As there is no allegation in the complaint that the plaintiff, by reason of the acts of the defendants, has sustained any special or peculiar injury, differing in kind from that which the public generally has sustained, it is obvious that the complaint fails to state facts sufficient to constitute a cause of action either for injunction or for damages."

In Baltzegar v. R. Co., 54 S.C. 242; 32 S.E., 358; 71 Am. St. Rep., 789, it is held that a complaint for nuisance alleging no damages special or peculiar to plaintiff, as distinguished from those sustained by the general public, does not state a cause of action. In a very clear opinion by the present Chief Justice it is shown that the test of a public nuisance is not the number of persons annoyed, but the possibility of annoyance to the public by invasion of its rights, the fact that it is in a public place and annoying to all who come within its sphere. In that case the plaintiff claimed that the act of the defendant in obstructing the flow of surface water, and causing an accumulation thereof, rendered his dwelling unhealthy and dangerous to live in and caused sickness and suffering to his family; it was held not an allegation of injury peculiar to himself, different in kind from that suffered by the public.

In Manson v. R. Co., 64 S.C. 120; 41 S.E., 832, which was an action to enjoin the Seaboard Air Line from destroying Sidney Park in the City of Columbia and converting it into a railroad yard, it was held that as the plaintiff was not an abutting owner and could not show that he had sustained injury different in kind from that which might reasonably be expected to be suffered by those "in the neighborhood," although differing in degree, he had nolocus standi. The present Chief Justice cited in support of the Court's conclusion the Cherry Case; High on Inj., §§ 1298-1301; 10 A. E. Enc. Pl. Pr., 897-900. In the last-named authority it is said (quoted by the Court):

"A private individual is a proper party plaintiff where the injuries which he will sustain are special and particular differing in kind and not merely in degree from those which the public at large will suffer."

In McMeekin v. Power Co., 80 S.C. 512;61 S.E., 1020; 128 Am. St. Rep., 885, the Court says:

"The obstruction of a navigable stream is a public nuisance and the remedy is by indictment, unless the person instituting proceedings on the civil side of the Court can show special or peculiar damages, differing in kind from those to which all others in common with him are exposed."

In Gray v. R. Co., 81 S.C. 370; 62 S.E., 442, it is said:

"The exception to the rule [that an indictment is the remedy for a public nuisance] is that a private citizen may maintain a civil action for damages or abatement with respect to a public nuisance upon allegation and proof of such obstruction and of direct and special damages resulting to him, different in kind from what the public may sustain."

In the Baptist Church case, supra, it is declared:

"The legislative authorization exempts only from liability to suits, civil or criminal, at the instance of the State; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large."

I do not agree with the declaration of the learned Chief Justice:

"In the first place, it will be observed that the provision as to condemnation proceedings is mandatory."

I do not find any warrant for this position in the act of charter, nor do I see the pertinency of the observation. Unquestionably the defendant could acquire all rights necessary for its purpose by purchase as well as condemnation. If the observation was intended simply as limiting the power of acquisition either by purchase or condemnation, to those rights necessary for the corporate purpose of the defendant. I thoroughly agree. The remainder of the paragraph is subject to the explanation of a similar statement given above in the Richards case; it is entirely true, if the injury to the plaintiff was the result of a private nuisance, or a public nuisance when the injury was direct, peculiar, and substantial, but not at all applicable if the injury was the result of a public nuisance, legalized by the act, where the injury to the plaintiff was not direct, peculiar, and substantial, differing in kind, etc.

To hold that the duty to condemn the right of the plaintiff to be free from mosquitoes appears to me to be an assumption of the very point in controversy, the character of the alleged nuisance as private, or as public with special injury to the plaintiff; and to annihilate the policy which prescribes an indictment as the appropriate remedy in order to avoid a multiplicity of suits at the instance of individuals sustaining a common injury. If the duty was mandatory, so far as the plaintiff is concerned, why is it not so in reference to each individual residing within the mosquito zone of from 1 1/2 to 8 miles in diameter, affected as the plaintiff was? The multitude of such individuals, as shown by the plaintiff's evidence, is conclusive proof of the fact that the injury to the plaintiff was not of that direct, peculiar, and substantial character from which the public generally has not suffered.

In Haggart v. Stehlin, 137 Ind., 43; 35 N.E., 997; 22 L.R.A., 577, it is held, quoting from Wood on Nuisance, §§ 645 and 646:

"No person can maintain a private action for a mere public or common nuisance, for the reason that the exercise of such a right would lead to a great multiplicity of suits, and endless interminable litigation."

I am not sufficiently informed as to the habits of theAnopheles quadrimaculatus or punctipennis (the malaria-bearing mosquitoes) to know whether or not their breeding is a necessary incident of the creation of such a pond of water as is in this case. There is testimony tending to show that there is less likelihood of such an event in such a pond than in small stagnant pools. But assuming that it is incidental, the incident has been authorized by the Act of the Legislature and cannot be considered a public nuisance subjecting the donee of the power to indictment; and the plaintiff has no private cause of action without showing, either that the authority conferred has been so negligently exercised as to produce the nuisance, or that his injury has been peculiar in kind to himself. The attorneys for the plaintiff appear to have recognized the obligation of alleging negligence, for the complaint abounds in virulent expressions of such a delict, with vituperative epithets. Their evidence is entirely lacking to support them. As Judge Memminger remarked upon occasion:

"The force and vigor of the war has fallen far short of the fine phrases of the manifesto."

Not only this, but the testimony, so far from showing an injury peculiar to the plaintiff, was abundant that the whole neighborhood for miles around was similarly affected — "a vaulting ambition that o'erleaps itself and falls on t'other side."

It seems to me that the Wallace Case, 34 S.C. 62;12 S.E., 815, is conclusive of the one proposition, and the Baltzeger Case, 54 S.C. 242; 32 S.E., 358; 71 Am. St. Rep., 789, of the other.

In the Wallace Case it was held that in an action against a railroad company for damage done to plaintiff's land, through which the railroad company had acquired a right of way, by the obstruction of a stream, the complaint failed to state sufficient facts, in not alleging negligent construction of the roadbed. "There must be some allegations 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 Baltzeger case has already been referred to.

In Lampley v. R. Co., 71 S.C. 156; 50 S.E., 773, it is held that a railroad company having obtained a right of way had the right to obstruct watercourses and is not liable to a landowner for flooding his land, in the absence of evidence showing a negligent construction, following the Wallace case.

"Where a railroad company, under the statute, has a right to construct its railroad, and has entered with the expressed or implied permission of the owner, it is not liable as a trespasser to adjacent landowners, under the common law, for the act and result of construction with due care, since the law will not declare that to be a nuisance or trespass which it had authorized." Johnson v. R. Co., 71 S.C. 241;50 S.E., 775; 110 Am. St. Rep., 572.

In Lawton v. Ry. Co., 75 S.C. 82; 55 S.E., 128, the action was for the negligent construction of an embankment across a watercourse in consequence of which the plaintiff's lands were injured. So were Jones v. R. Co., 67 S.C. 181;45 S.E., 188; Free v. Parr Shoals Co., 111 S.C. 192;97 S.E., 243.

Another consideration is, I think, decisive of the appeal: Upon the facts of the case developed by the testimony for the plaintiff alone, he was entitled only to a recovery of compensation under condemnation proceedings, and not to an action for damages.

There was an allegation of negligent construction, but no evidence of it. It would be assumed then that the cause of the plaintiff's injury was incidental to the exercise of the defendant's legal authority to construct the dam and impound the water, and without negligence on its part. If so, the plaintiff's cause of action was for compensation under the statute, regardless of the fact that the injury may have been peculiar to him, in the sense above indicated.

Of course, if the injury resulted from a cause not incidental to the legally authorized construction, and constituted a public nuisance, the defendant could claim no protection from the act of charter, so far as relieving it from the charge of creating a nuisance is concerned; and in that event the plaintiff would be entitled to recover for an injury peculiar to himself; or, if the works were negligently constructed, he would be entitled to recover, regardless of whether or not the cause was a public nuisance or the injury peculiar to himself.

But when it appears, as I think it does, that the works were authorized by statute, and, therefore, not a public nuisance, and that the cause of injury was incidental to the construction, and, therefore, a necessary, inevitable result of it, I think that the authorities in this State are conclusive of the proposition that the plaintiff's only remedy was under the condemnation statute.

The rule as established by the decisions of this Court is that where the right of condemnation exists and the corporation takes possession of the property of another, without the consent of the owner, express or implied, or by condemnation, it becomes a trespasser and that, while it may be made liable in damages for such unauthorized entry, it may not be ejected as an ordinary trespasser; that, having the right to take the property under condemnation, it may retain possession upon payment of due compensation to the owner for the taking. Cayce Land Co. v. R.Co., 111 S.C. 115; 96 S.E., 725; Ingleside Co. v. Light Power Co., 76 S.C. 95; 56 S.E., 664.

But where the entry has been made with the consent of the owner, express or implied, the owner's remedy is exclusively under the condemnation statute. In the former case the compensation is ascertained under the statute, if the right to compensation is admitted; or by an action for damages, if it is denied. In the latter case, the remedy under the statute is exclusive.

In the case at bar there has been no entry upon the property of the plaintiff; the damage, if any, is shown to have been entirely consequential from a lawful entry upon other lands as to which the plaintiff was not required to be consulted.

If it should be held, nevertheless, that this presents a case of entry where the plaintiff would be entitled to damages if there has been an entry without his consent, the evidence shows as strongly as it does in the Leitzsey case, that the plaintiff was fully aware of the development and made no objection; in fact, he conveyed to the defendant a part of his land which was to be flooded by the dam; and that, therefore, his consent will be implied.

In the case of Leitzsey v. Water Power Co., 47 S.C. 464;25 S.E., 744; 34 L.R.A., 215, affirming and followed by other cases, the plaintiff owned land on the west side of and adjacent to Broad River. The defendant was authorized by its charter, or that of its predecessor, to erect a dam across the river for the purpose of developing the canal. The plaintiff alleged that, by reason of the maintenance of the dam, the water was raised six feet in the channel, thereby obstructing the flow, preventing the usual drainage of the lands, causing frequent overflows and the destruction of his crops. The power company was authorized to condemn rights of way necessary for its purpose. The plaintiff brought an action for damages, and the defendant demurred upon the ground that the remedy under condemnation proceedings was exclusive; there being no allegation that the dam was negligently constructed. The demurrer was sustained by the Circuit Judge, and on appeal his order was affirmed by this Court. There it appeared that the nuisance was a private one, affecting the plaintiff peculiarly; but the Court held that the remedy under the statute was exclusive — a much stronger case for the plaintiff than the case at bar, where the nuisance was a public one, and the plaintiff not peculiarly affected. There can arise no question of the plaintiff being deprived of his property without compensation, as the Court very clearly shows:

"Of course, the permission granted by plaintiff to the Board of Trustees to enter for the construction of the dam and appurtenances [a permission, I will add, which arose by implication only, as it does in the case at bar] did not deprive the 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 (imputation?) of trespassers. Tompkins v. R. Co., 21 S.C. 431. Neither is the defendant grantee a trespasser for continuing the use. The remedy provided by the statute is exclusive" — citing McLauchlin v. R. Co., 5 Rich., 584; Fullerv. Edings, 11 Rich., 239; Verdier v. R. Co., 15 S.C. 483;Sams v. R. Co., 15 S.C. 487; Ross v. R. Co., 33 S.C. 477;12 S.E., 101.

See, also, Touchberry v. R. Co., 83 S.C. 315;65 S.E., 341.

In Garraux v. Greenville, 53 S.C. 575; 31 S.E., 597, it is held, citing the Leitzsey case:

"In reference to the remedy for compensation for right of way provided by statute, this Court has repeatedly held that such remedy is exclusive."

In Rankin v. R. Co., 58 S.C. 532; 36 S.E., 997, it is held:

"A railroad corporation, chartered under the laws of this State, and authorized to construct a railroad, is not a trespasser for entry upon lands for the purpose of such construction, unless such entry is made without the consent of the owner, and it is necessary to the cause of action to allege the absence of such consent. Tompkins v. R.R., 37 S.C. 382. The complaint, then, is fatally defective for failure to make such allegation. So far as the complaint shows, the only objection ever made by plaintiff was as to cutting down the two oaks, and it appears that they were not cut down. As the route of the railroad was very near plaintiff's dwelling, she must have had knowledge of the first entry for construction, and having made no objection thereto in the manner required by statute, her consent would be presumed, and her only remedy would be for compensation under the condemnation statutes."

In Johnson v. R. Co., 71 S.C. 241; 50 S.E., 775; 110 Am. St. Rep., 572, it is held:

"In all cases, except where the right to compensation is disputed, or where the owner has not actually or constructively permitted the entry for construction, the remedy afforded by the condemnation statute is exclusive."

As a matter of supreme public concern the affirmance of this judgment, opening the floodgates of litigation, will not only bankrupt the useful institutions which mark the progress of this State, but will bar forever the development of millions of horsepower in the streams that now "run wanton to the sea."

For these reasons the judgment should be reversed, and it is so ordered.

MR. JUSTICE MARION, and CIRCUIT JUDGES MEMMINGER, DeVORE, SHIPP, SEASE and PEURIFOY concur.