This is an action by the plaintiff to recover damages alleged to have been sustained by him through the erection and closing of a dam across the waters of the Catawba or Wateree River, thereby *Page 310 creating a large pond of water and causing injury to the plaintiff's lands, rendering them unfit for residential purposes, greatly depreciating and destroying the value thereof.
The complaint is as follows:
"1. [This paragraph merely contains formal allegations, which are admitted.]
"2. That the plaintiff is, and was at the times hereinafter mentioned, seized and possessed as owner in fee simple of the following tract of land, to wit: All that certain piece, parcel or tract of land lying, being and situate in the County of Fairfield, and State aforesaid, containing 188 acres, more or less. * * *
"3. That heretofore the defendant erected and closed a dam across the channel of the Catawba or Wateree River at Getty's Shoals and is maintaining the same across the channel of the said river, whereby a great lake or pond of water has been created, extending for many miles above and below plaintiff's said lands and spreading out so as to reach within a distance of one mile of plaintiff's home and living habitations, causing the formation of pools of standing and stagnant waters on or near to plaintiff's said lands, and creating great swarms of malaria-bearing mosquitoes, which have caused all of the tenants on plaintiff's said lands to become and to remain ill with malaria, chills, and fever, creating thereby health conditions which render plaintiff's said lands unfit for residential purposes and greatly depreciating and destroying the value of said lands.
"4. That by erecting and closing said dam, and creating the said lake or pond of water as aforesaid, the defendant has obstructed the natural flow of the waters and flood waters of the Wateree River, and the creeks, ditches and drains which empty or discharge into said river, filling the same with sand and debris, and greatly lessening the capacity of said creeks and ditches for drainage purposes through and over plaintiff's said lands. *Page 311
"5. That in constructing and closing said dam, defendant, although knowing said action by it would result in possible great injury to the lands of plaintiff in proximity to the lake which it was about to form, negligently, carelessly and with willful and reckless disregard of the rights of others, and the property of the plaintiff, and of the requirements of the law with reference thereto, without notice to the plaintiff and without his consent, closed said dam and flooded said large area without having said area which was to be submerged cleaned and cleared of trees, vines, shrubs and grasses, and other vegetable matter, by cutting or burning the same.
"6. That the act of the defendant in so closing and building and maintaining said dam, and thereby raising the waters in the channel of said river, and the streams, creeks, ditches, drains and hollows emptying into and lying about it, particularly the branches, creeks and ditches on and through plaintiff's said lands, and throwing the waters and same back in, on and upon plaintiff's said bottoms sobbing the same, and the pooling of the stagnant waters as aforesaid, was and is an illegal trespass upon the lands of the plaintiff, to his damage in the sum of $2,000.00."
The defendant denied the material allegations of the complaint, and set up the following defense:
"That the defendant was duly authorized and empowered to construct and maintain the dam, pond of water and hydro-electric plant complained of in the complaint of the plaintiff, by an Act of the Legislature of South Carolina, entitled `An Act to incorporate the Wateree Power Company,' approved February 26, 1909, and found in Volume 25, p. 400, of the Statutes of South Carolina; that said dam, pond of water and other structures connected therewith were constructed and have since been maintained by the defendant in strict accordance with the terms and conditions of said Act, and this defendant expressly pleads said Act in bar of the plaintiff's right to maintain this action." *Page 312
At the close of the testimony, the defendant made a motion for the direction of a verdict on the following grounds:
"(1) That there is no evidence in the case tending to show actionable negligence or trespass or any other cause of action against the defendant.
"(2) That the only reasonable inference that can be drawn from the testimony is that the plaintiff has failed to sustain the allegations of the complaint, and that no cause of action has been proven to exist against the defendant.
"(3) That there is no evidence in the case to warrant punitive damages."
The motion was refused.
Plaintiff's attorneys withdrew the claim for punitive damages.
The jury rendered a verdict in favor of the plaintiff for $1,000.00, and the defendant appealed.
There was testimony tending to sustain the allegations of the complaint; and the practical question in the case is whether the Act incorporating the defendant (1909, p. 400) authorized it to commit the acts of wrong alleged in the complaint.
The purposes for which the defendant was chartered are as follows:
"For manufacturing, generating, buying, selling, leasing, letting, accumulating, transmitting or distributing any and all types of electric current for light, heat, power and for any other uses and purposes to which the same may be adapted."
Section 3 of said Act is as follows:
"Said corporation shall have the right and power to condemn any and all lands, property, water, riparian or other rights, or easements, or any interest therein, necessary to the construction, erection, operation and maintenance of its power plants and dams. Such property, lands, water, riparian or other rights, and easements shall be condemned in the same manner and the methods of compensation to be *Page 313 the same as in the case of condemnations by railways, canal, and turnpike companies, provided by the laws of this State."
Section 6 of the Act contains this provision:
"That the right of condemnation shall not be exercised until seven-elevenths of the water rights and easements necessary for the development of any water power provided for in this Act shall have been acquired by purchase from the owner thereof."
In the first place, it will be observed that the provision as to condemnation proceedings is mandatory; and, in the second place, that the defendant was without authority to condemn any lands, property, water, riparian or other rights, or easements, or any interest therein, except such as were necessary to the construction, erection, operation, and maintenance of its power plants and dams. If the damage was not preventable by the use, at reasonable expense, of proper devices, then the plaintiff's property must be regarded as necessary for the purposes contemplated by the defendant's character, and could be acquired by purchase or condemnation proceedings; and, pending its acquisition, the defendant would be responsible.
When the defendant failed to comply with the mandatory provisions of the Act as to condemnation proceedings, the plaintiff had the right to bring an action for damages against it as a trespasser.
In Tompkins v. R.R., 37 S.C. 382, 16 S.E., 149, the rule is thus stated:
"As we understand it, under the law as it now stands, a corporation has no right, for the purpose of constructing a railroad to enter upon the land of another (except for the purpose of survey and location), until it has obtained the consent of the owner, or, in case of refusal of consent, until it has taken the proceedings provided for by statute to ascertain what would be just compensation to the owner of the land, and any entry for the purpose of constructing its railroad, before such consent has been obtained, or before *Page 314 the proper proceedings to ascertain what would be just compensation to the owner, is unlawful, and subjects the corporation to liability to be proceeded against as a trespasser. The two remedies are entirely distinct and separate, and the one is not dependent upon the other."
In the case of Richards v. Terminal Co., 233 U.S. 546;34 Sup. Ct., 654; 58 L.Ed., 1088; L.R.A. 1915A, 887, the Court thus ruled: That the Fifth Amendment to the Constitution of the United States, which provides that private property shall not be taken for public use without just compensation, prohibits Congress from conferring immunity from suit for private nuisance, of such a character as to amount, in effect, to a taking of property for a public use, although it may legalize what otherwise would be a public nuisance.
That said constitutional provision does not require that the owner of noncontiguous property, no part of which was actually appropriated, but which lies in the neighborhood of a railroad tunnel, constructed or maintained upon property by purchase or condemnation proceedings, be compensated for the damage through the smoke, cinders, gases, dust, and dirt, and vibrations incident to the prudent operation of the railroad.
That an owner of property in the neighborhood of, but not abutting upon, the railroad tracks and tunnel, constructed and maintained under certain Acts of Congress, is entitled, under said constitutional amendment, to be compensated for damages attributable to gases and smoke from locomotives while in the tunnel, and by means of a fanning system, forced out of such tunnel, in such manner as naturally to render such property less habitable than otherwise it would be, and to depreciate it in value.
In that case the Court used the following language:
"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 *Page 315 and operation of the railroad, so that its operation while properly conducted and regulated, cannot be deemed to be a public nuisance. Yet it is sufficiently obvious that the acts done by defendant, if done without legislative sanction, would from the subject of an action by plaintiff to recover damages as for a private nuisance. * * * The legislation we are dealing with must be construed in the light of the provision of the Fifth Amendment — `Nor shall private property be taken for public use without just compensation' — and is not to be given an effect inconsistent with its letter or spirit. * * *
"The present case in the single particular already alluded to — that is to say, with respect to so much of the damage as is attributable to the gases and smoke emitted from locomotive engines while in the tunnel, and forced out of it by the fanning system therein installed, and issuing from the portal located near to plaintiff's property, in such manner as to materially contribute to render his property less habitable than otherwise it would be, and to depreciate it in value; and this without, so far as appears, any real necessity existing for such damage — is, in our opinion, within the reason and authority of the decision just cited: * * * The case shows that Congress has authorized, and, in effect, commanded, defendant to construct its tunnel with a portal located in the midst of an inhabited portion of the city. The authority, no doubt, includes the use of steam locomotive engines in the tunnel, with the inevitable comcomitants of foul gases and smoke emitted from the engines. No question is made but that it includes the installation and operation of a fanning system for ridding the tunnel of this source of discomfort to those operating the trains and traveling upon them. All this being granted, the special and peculiar damage to the plaintiff as a property owner in close proximity to the portal is the necessary consequence, unless at least it be feasible to install ventilating shafts or other devices for preventing the outpouring of gases and smoke, *Page 316 from the entire length of the tunnel at a single point from the surface, as at present. Construing the Acts of Congress in the light of the Fifth Amendment, they do not authorize the imposition of so direct and peculiar and substantial a burden upon plaintiff's property without compensation to him. If the damage is not preventable by the employment at reasonable expense of devices such as have been suggested, then plaintiff's property is `necessary for the purposes contemplated,' and may be acquired by purchase or condemnation, * * * and pending its acquisition defendant is responsible. If the damage is readily preventable, the statute furnishes no excuse; and the defendant's responsibility follows on general principles.
"No doubt there will be some practical difficulty in distinguishing between that part of the damage which is attributable to the gases and smoke emitted from the locomotive engines while operated upon the railroad tracks adjacent to plaintiff's land, and with respect to which we held there is no right of action, and damage that arises from the gases and smoke that issue from the tunnel, and with respect to which there appears to be a right of action. How this difficulty is to be solved in order to determine the damages that should be assessed in this action, or the compensation that should be awarded in case condemnation proceedings are resorted to, is a question not presented by this record, and upon which, therefore, no opinion is expressed."
The opinion from which we have just quoted is exceedingly able, and may, indeed, be regarded as a leading opinion touching the questions therein decided.
Mr. Justice Pitney, who delivered the opinion of the Court, clearly points out the distinction between the liability for damages caused by the construction and maintenance of railroad tracks (which are in their nature inactive and passive) and the liability resulting from the operation of the engines and cars that run over the tracks. The right to damages resulting from injury by reason of the construction *Page 317 and maintenance of the tracks is to be determined under the provision of the Constitution that private property shall not be taken for public use without compensation.
Liability under this provision of the Constitution is not dependent upon the question of negligence. On the other hand, when the action is for damages arising out of the operation of the engines and cars, proof of negligence is indispensable. The cases of Woods v. Fertilizer Co., 102 S.C. 442;86 S.E., 817; Ann. Cas. 1917D, 1149, andFree v. Parr Shoals, 111 S.C. 192; 97 S.E., 243, show that the nuisance alleged in the complaint was private and not public in its nature. Applying these principles to the present case, the question is whether acts of the defendant alleged in the complaint amount, in effect, to a taking of property without just compensation, which, as we have stated, does not depend upon negligence.
In Haig v. Wateree Power Co., 112 S.E., 55, which was recently decided by this Court, the rule is thus stated:
"Possession is not the only element of value in the land. The right to sell, the right to rent, the right to improve, the right to sow and to reap, are all valuable rights which are affected by a verdict in a condemnation proceeding. Mr. Lewis, in his writings on Eminent Domain (3d Ed.), Vol. 1, § 65, says:
"`If property, then, consist, not in tangible things themselves, but in certain rights in and appurtenant to those it follows that when a person is deprived of any of those rights he is to that extent deprived of his property, and hence that his property may be taken, in the constitutional sense, though his title and possession remain undisturbed; and it may be laid down as a general proposition, based upon the nature of the property itself, that whenever the lawful rights of an individual to the possession, use, and enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain, his property is *Page 318 pro tanto taken and he is entitled to compensation.'" (Italics added.)
The enumeration of the property in Section 3 of the incorporating Acts is sufficiently comprehensive to include the plaintiff's property, which the complaint alleges was taken by the defendant, and for which the plaintiff brings this action, practically for compensation.
The words used by the Court in Haig v. Wateree PowerCo., supra, and the quotation from Lewis on Eminent Domain, show conclusively that whatever the prevailing rule may heretofore have been, it does not now require that there should be a physical appropriation of the owner's property in order to constitute such a "taking" as to entitle him to compensation.
The testimony sustains the allegations of the complaint, and the plaintiff was entitled to recover a verdict, unless there was error in the ruling of his Honor, the presiding Judge, that it was not necessary for the plaintiff to prove negligence on the part of the defendant. If the Circuit Judge had charged that the plaintiff was not entitled to compensation, unless there was proof of negligence, such a ruling would have been in violation of Section 17, Article 1, of the Constitution, which provides that private property shall not be taken for public use without just compensation being first made therefor. Such a ruling would, in effect, have added a new condition to that provision of the Constitution just quoted.
As this action has been treated throughout the trial practically as a proceeding for compensation, and in order to remove all doubt as to the right of the plaintiff to recover damages under condemnation proceedings, we deem it advisable under the authority of Auten v. Catawba Co., 84 S.C. 399;65 S.E., 274; 66 S.E., 180, to grant a new trial unless within twenty days the plaintiff or his attorneys shall consent upon the record that the verdict by the jury shall be in satisfaction of all damages, both past and future, but that, *Page 319 if the plaintiff complies with this condition, the judgment should be affirmed, and it should be so adjudged.
MESSRS. JUSTICES WATTS and FRASER, and CIRCUIT JUDGES WILSON, BOWMAN and MAULDIN, concur.