Garmany v. Southern Ry. Co.

September 18, 1929. The opinion of the Court was delivered by These suits by J.R. Garmany, as plaintiff, against the Southern Railway Company, and P.F. Terry, as plaintiff, against the same defendant, were commenced in the Court of Common Pleas for Jasper County, September 25, 1926, for the recovery of damages to lands and crops of the plaintiffs in said county of Jasper, at or near the town of Hardeeville, on account of alleged diversion and obstruction of surface water by the defendant. The defendant set up a general denial. By agreement the cases were tried together, at the December, 1926, term of Court of Common Pleas, for said county, before his Honor, Judge T.J. Mauldin, and a jury. At the conclusion of the testimony the defendant made a motion for a directed verdict. His Honor, Judge Mauldin, after due consideration, refused the motion and submitted the case to the jury. The jury returned a verdict for the plaintiff J.R. Garmany in the sum of $700.00 as actual damages and $300.00 as punitive damages, and a verdict for the plaintiff P.F. Terry in the sum of $100.00 as actual damages. The defendant made a motion for a new trial, which motion the Court refused. From the entry of judgment on the verdicts, the defendant pursuant to due notice has appealed to this Court, and asks a reversal of the judgment in each case upon the grounds stated in the exceptions.

The exceptions are eight in number, and several of the exceptions contain a number of subdivisions, but it will not be necessary to consider the same separately. Under the view we take of the case, there are three main questions involved in the appeal, namely:

(1) Did the presiding Judge err in refusing defendant's motion for direction of a verdict?

(2) Did the presiding Judge err in his instruction to the jury?

(3) Did the presiding Judge err in refusing defendant's motion for a new trial?

While there are several minor questions presented, the answer to these questions will dispose of the appeal.

As to the first question: Did the presiding Judge err in refusing defendant's motion for a directed verdict? This motion was based upon the following grounds:

"(1) That absolutely no inference can be drawn from the testimony, except that the water complained of is surface water, and there is a total failure of proof that would tend to substantiate any cause of action whatever against the defendant in this case.

"(2) There is absolutely no testimony from which any possible inference could be drawn that would tend to substantiate or support plaintiffs' allegations to the effect that defendant, its agent, servants, and employees, collected surface water into an artificial channel and cast it upon plaintiffs in concentrated form to their injury and damage.

"(3) There is a total failure of proof from which any possible inference can be drawn that would support or tend to support any cause of action on behalf of plaintiffs by reason of the alleged acts complained of in the two complaints in these two actions."

There is no question about the water alleged to have caused the damage being surface water, it is so stated in the agreed statement of facts; but the question to be considered is whether or not, under the law of this State as to surface water, there was any testimony in the case which tended to establish liability against the defendant and warranted the presiding Judge in submitting the case to the jury.

The rule of law of force in this State governing the control of surface water has been so often stated by this Court that we do not deem it necessary to enter into a discussion of the rule at this time. For a full discussion of the subject, reference may be had to the cases of Bradenberg v. Zeigler,62 S.C. 18, 39 S.E., 790, 55 L.R.A., 414, 89 Am. St. Rep., 887, and authorities therein cited; also Cain v. SouthBound R.R. Co., 62 S.C. 25, 39 S.E., 792; Touchberry v.Railroad Co., 87 S.C. 415, 69 S.E., 877; Rentz v. So. Ry.Co., 82 S.C. 170, 63 S.E., 743; Deason v. So. Ry. Co.,142 S.C. 328, 140 S.E., 575; Rivenbark v. A.C.L.R. R.Co., 124 S.C. 136, 117 S.E., 206.

For the purposes of this case we deem it sufficient to state that surface water is regarded as a common enemy, and every landed proprietor has the right to use such means as he deems necessary or expedient for the protection of his property from damages it may cause, except that the landed proprietor must not handle it in such a way as to create a nuisance, and must not by means of a ditch or other artificial means collect water and cast it in concentrated form upon the lands of another, to the damage of his lands or health, nor by such means conduct surface water in concentrated form to a point where it results in injury to another's property or health. Such artificial channel need not necessarily extend to the line or edge of the injured person's lands, in order to sustain an action for damages, but must extend to such a point that the surface water conveyed therein or thereby results in injury to such person's lands or health.

Was there any testimony in the case at bar tending to establish such a state of facts; that is, did the defendant, by means of a ditch or other artificial means, collect surface water and cast it in concentrated form upon the lands of the plaintiffs, to their damage, or by such means conduct it to such a point that it damaged plaintiffs' lands or crops thereon? The question of nuisance or injury to health is not involved in this case.

In this connection we call attention to the following testimony, and especially to that we have italicized:

In the course of his testimony, Mr. H.W. Thomas, a witness for the plaintiffs, stated:

"I have lived near Hardeeville, Jasper County, for twenty years, and I know where Garmany's place is, and where Terry's place is, and have known those places for twenty years. Both are on west side of Southern Railway, and they adjoin each other. North of Garmany's place was a little hill, beside the section houses, and then just above that was a pond of water, which would at times accumulate a lot of water there, and the railroad went in there and removed this dirt, right at the section houses beside this hill, and threw the water from there down through Garmany's place. Between where the water accumulated and Garmany's place was a hill. The most of water stayed there until it evaporated. When it did run, it did not run toward Garmany, but went back in direction of Savannah River swamp, in western direction. A number of acres holding water accumulatedright beside where they cut ditch to take water down on Garmany's place, about six or eight or maybe twelve acres withwater standing on it. That water goes right from the placewhere they removed dirt right onto Garmany's place. Garmany's place comes first; then Terry's adjoins his. Dirt was removed before last July. I saw land in July of last year. Along during the latter part of July, when they had this water to do so much damage there, I passed his place and saw his ground standing under water, except a small portion where his house is. Most of the water came from above,where they cut the drain and let water on him from pondabove. There was a sewer pipe under roadbed right opposite Garmany's place. Very little water was going through there, because a door was built and put against the pipe and stopped the water. * * *

"Q. Now, the dirt removed that you spoke of; you say it was on the right-of-way? A. Yes, sir; the ditch on the right-of-way, and went along in front of the section houses, extending about one hundred and fifty yards in length. Ditch extends both ways, above and below section houses. It is about six hundred yards from edge of Garmany's property to ditch. The upper edge of Garmany's property is from four hundred to six hundred yards from ditch. Ditch is in practically same place other ditch was, but this is largerditch. I know a ditch has been along there, but I never paidany attention before to any ditch there to amount to anything.

"Q. And this was cut in the same place where you saw the other one, however small the other one was? A. Yes, sir; Ihave the slightest recollection of a ditch being there right where this one is now, and nothing like this one there now."

On this point the plaintiff in his testimony stated:

"Q. Just north of your place, what unusual was over there on Mr. Heyward's land? A. (No answer.)

"Q. What was the character of the land? A. Mr. Heyward?

"Q. Yes; right north of you. A. It was hilly.

"Q. It was hilly land? A. Yes, sir.

"Q. Did this land have any hills between your land and Mr. Heyward's land? A. It did. There was always a basin of water up in there of about three or four acres.

"Q. Where did this water get out of the basin? A. It would rise, and then it would fall, and it would go out toward the north, this way (indicating).

"Q. And whenever it overflowed, would it come back toward your land? A. No, sir; it would go north from my land.

"Q. Why wouldn't it come back on your land? A. Just about the section houses, or above, what we might term an embankment, and it was high there, and it held the water from me. It was just this way (indicating). It held the water, like my hand, up in there. It was just a basin. One morning of April, or May, this year, Mr. Duncan, supervisor of the railroad, had a train down there hauling dirt. I asked Mr. Duncan if he was building a double track now, and he said, ``No, we are cutting that hill, and the water we got down in here, because, when our men are switching on that said track, they have got to get out in water to couple and switch their train, and we have got to do something to keep our men out of the water.' And I said, ``Mr. Duncan, if you cut that in, and when it is high, and it is raining up there, and the water overflows me, and it will overflow me and my land.'

"Q. Did you tell Mr. Duncan, whenever he cut this ditch, and when it was high water, and that would let the water come down on you? A. Yes, sir; come down on me, and overflow my pasture, and back up to my house. He told me, ``You and Mr. Bookter see him.'

"Q. Did they cut a ditch there? A. They lowered the hill there for the water to get out of that basin, and ran a ditchthere, and after the ditch was put there the water wouldjust flow, and it did not before. They must have used ashovel. I saw them there with the train; I saw them cuttingdown the hill, and I saw them unloading dirt.

"Q. State whether or not they cut down this hill on their right-of-way, or down on somebody else's land. A. Theycut the land, and cut the slope on their own right-of-way,to let the water out from their side tracks, to let the waterout from up there. It must have let the water out, for it camerushing down so fast it covered my pasture, and all my land,except about five acres. It backed up until it couldn't go any farther.

"Q. Did it cover your farm land? A. The land that it covered in a shallow depression, and had no way to get out. * * *

"A. That the water comes, and water will follow its natural way. My land is lower next to the railroad than it is on the hill. I go up toward section houses almost every day. I was up there the same day they were shoveling off that embankment. They had a shovel of some kind, and they loaded dirt on cars and hauled it away. They were loading flat cars. They cut away back down there, and when the water falls in there it would go right out. I never saw aditch along there where they had this shovel. Where they shoveled dirt is about three hundred yards from the nearest edge of my land. Work was done on the right-of-way. I did not say that Mr. Duncan said he was doing this to keep side track from getting soggy and wet. I asked him about it, and he told me they were going to ditch it to keep the water from getting in there when they were switching cars, and that their men to have to get out in the water."

The plaintiff, P.E. Terry, and other witnesses, testified that the surface water in question first flowed upon Garmany's land, and then across on the lands of the plaintiff Terry, and caused the damage complained of on Terry's land. At least, this was one inference to be drawn from the testimony.

As we view the case, there was testimony tending to establish the necessary allegations to support the cause of action set out in plaintiffs' complaints, and therefore the presiding Judge properly overruled defendant's motion for a directed verdict.

As to the allegation, and testimony tending to establish the same, to the effect that the defendant went upon its right-of-way I stopped a waste pipe, which was under the roadbed of the defendant, and by such act caused some of the surface water to pond on plaintiffs' land, we desire to state that such alleged act was within the rights of the defendant, but the establishment of such alleged act was not necessary in order for the plaintiffs to recover in this action. In this connection, we call attention to the fact that, so far as the record discloses, there was no motion to strike this allegation from the complaint, no objection to testimony on the proof of the allegation was interposed, and no request was made to instruct the jury as to the same. However, it appears from an examination of the charge that the presiding Judge did not submit that issue to the jury, and no question as to the same is presented to this Court.

As to the second question raised by the exceptions, that the presiding Judge erred in his instructions to the jury, and because of such error the judgment should be reversed, we are again unable to agree with appellant. The fourth and fifth exceptions, under which the question is raised, are as follows:

"It was error for the Judge to charge the jury as follows: ``Negligence, in order to be actionable — that is, negligence in order to support an action at law — must be shown by the evidence in the case to have been the direct and proximate cause of the injury complained of. In other words, the plaintiff in each case says that by reason of the acts of the defendant, set forth in the complaint in each case respectively, the plaintiff was caused to suffer injury and damages as set forth in his complaint, and says that the acts complained of against the defendant were done in a negligent manner. I say to you, Mr. Foreman and gentlemen of the jury, that to recover upon the acts charged against the defendant, and indicated in the complaint against the defendant as negligent, must be shown to have been the direct and proximate cause of the injury complained of, if they were negligent acts, if the acts complained of, for want of due care therein, and if those acts were the direct and proximate cause of the injury complained of, and then such acts be actionable in behalf of the plaintiff against the defendant,' etc. — the error being that:

"(a) A proprietor dealing with surface water on his own land is not bound to exercise reasonable care with regard to the rights of other landowners, and all proof showed defendant was dealing with surface water upon its own right-of-way in doing acts complained of.

"It was error for the Judge to charge the jury as follows: ``But I say to you, if one impound surface water, and so impounds by his act artificially that water to be concentrated in volume upon his property, and he does that, Mr. Foreman and gentlemen of the jury, and if in doing that work, whatever it may be, and he does it in a negligent way, and thereby causes it to be concentrated upon his neighbor, and then that neighbor would have a right to recover against one who does it in such a negligent manner or way, and if the act was the direct and proximate cause of any injury sustained by him by reason of the water so impounded' — the error being:

"(a) Charge is not responsive to the issues raised by the pleadings or by the testimony.

"(b) The question of negligence does not enter into the manner of the handling of surface water by a landowner in order to keep it off his own premises."

We agree with appellant to the extent that negligence does not enter into the case, but such charge, instead of being prejudicial to the defendant, was, under the law of force in this State, applicable to the facts of this case to which we have called attention, too favorable to the defendant, and affords the defendant no ground for complaint.

The sixth exception complains of error in the charge as follows:

"It was error for the Judge to charge the jury as follows:

``And if water is so impounded, and does it will fully and wantonly, and bearing in mind what I have said to you, the meaning or significance of wantonness, and if water is so impounded willfully and wantonly upon his property, and then concentrated upon his neighbor, and then he would be liable for punitive damages' — the error being:

"(a) Charge is not responsive to the issues raised by the pleadings, or by the testimony, there being neither allegation nor proof that defendant impounded surface water and then turned it loose in concentrated from through artificial means on plaintiffs.

"(b) A landed proprietor may keep surface water off his own premises, even though by so doing he may throw or keep it on his neighbor, and even though he may know that to keep it off his own premises will throw it upon his neighbor, provided he do not impound it and then throw it in a concentrated from through an artificial channel."

In our opinion there was ample testimony, responsive to sufficient allegations, to support a verdict for punitive damages, and that this issue was properly submitted to the jury under clear instructions as well as the other issues involved in the case. We may state also that, so far as the record before this Court disclose, appellant presented no request to charge on any issue involved in the case.

The third question, that the presiding Judge erred in refusing to grant the motion for a new trial, raised under exceptions 7 and 8, must be considered in connection with the grounds stated in the motion for a new trial. That motion was as follows:

Mr. Manuel: "In these two cases, your Honor, I would like to urge the identical grounds that I pressed in my motion for a directed verdict, and, in addition to that, to call your Honor's attention to this:

"``In defining or describing the liability of the law, with regard to surface water, to the jury, your Honor charged as to the exception upon which suits are based, which is used as a basis of the acts in this complaint; that is, it is actionable for a person to impound or hold water on his own premises accumulated, and then turn it loose in concentrated from on his neighbor, through an artificial channel, in that concentrated form. I take it that your Honor charged that right according to the decisions of the State. There is not a jot or title of testimony in these cases from which any inference could be drawn to the effect that the defendant impounded or accumulated surface water on its premises, or right-of-way, and then cast it in concentrated from, through an artificial channel, on the plaintiffs, or either of them.'"

What we have stated herein in our discussion of the first question is sufficient answer to this question. We think the presiding Judge committed no error in overruling the motion for a new trial.

The exceptions are overruled, and it is the judgment of this Court that the judgment of the Circuit Court be and is hereby affirmed.

MR. CHIEF JUSTICE WATTS concurs.

MESSRS. JUSTICE BLEASE and STABLER concur in result.