This action was brought to recover alleged damages suffered by the respondent, as a result of his land being overflowed on March 21, 1942, by waters released from appellant's dam and hydro-electric plant at Buzzard Roost.
The respondent owns a tract of land containing a little more than 300 acres, about 3 1/2 miles below the dam, lying *Page 266 on both sides of Saluda River, at a point where Saluda River is the boundary line between Newberry and Greenwood Counties. About 9 acres of this tract is in Greenwood County, on which side the banks of the river are higher than they are on the Newberry side, and that portion of the land situate in Greenwood County is not subject to overflow; and there is where respondent's home is located. Respondent's land on the Newberry side of the river is all low land, and it is that portion of the tract that was overflowed which gave rise to this action. The river upon reaching the boundary of respondent's land makes a sharp turn toward Greenwood, and then curves back toward Newberry, the river there making the form of a horseshoe. That portion of respondent's land that is located in Newberry County is within the horseshoe bend of the river and when the water gets out of the banks of the river there, it is subject to overflow, and had been subject to overflow both prior and subsequent to the building of the dam at Buzzard Roost.
It was conceded on trial that there is no statute authorizing the bringing of this suit that deprives appellant of its immunity therefrom as a political subdivision of the State, but respondent contended that the flooding of his land on March 21, 1942, by appellant opening one of its flood gates, under all the circumstances constituted a taking of his property without compensation, in violation of both the State and Federal Constitutions.
At the close of all the testimony, appellant made a motion for a directed verdict, whereby the appellant contended that the only reasonable inference to be drawn from the testimony was that there was no taking of respondent's property within the meaning of either the State or Federal Constitutions. Appellant contended that the only reasonable inference to be drawn from the evidence is that appellant released at no time more flood waters than were received at its dam, and only to the extent necessary to prevent such flood waters *Page 267 rising in its dam and overflowing it — and hence, if the dam had not been there, respondent's lands would have been flooded to an even greater extent than they were.
The trial Judge ruled that it was for the jury to say whether or not the opening of one of appellant's flood gates discharged water on respondent's land in a larger volume or at an accelerated pace, which resulted in respondent's property being taken without compensation being made therefor, and overruled the motion for a directed verdict.
After rendition of the verdict, appellant again moved for a directed verdict non obstante veredicto, which motion was refused.
Appellant by two exceptions charges error (Exception one) in the failure to grant either its motion for a directed verdict or its motion for a directed verdict non obstante veredicto, and (Exception two) in the trial Judge's charging negligence.
The land on the Newberry side of the river which was subject to overflow was customarily used for pasture and for raising foodstuff for cattle. On the occasion under discussion, the respondent suffered the loss of eleven head of cattle from drowning, which he testified were of the value of Eleven Hundred ($1,100.00) Dollars, and it is obvious from the verdict of the jury ($1,100.00) that no other damage was included in the verdict.
In that a new trial must be ordered under Exception two, we think it well not to discuss the testimony in any detail, but we have carefully read same and are of the opinion that it presented an issue of fact for the jury to decide whether the respondent sustained any damage as a result of the natural and ordinary flow of the river being impeded, and the water from additional rainfall then discharged through a flood gate in a larger volume and at an accelerated pace.
We are constrained to sustain appellant's second exception. The trial Judge, after having stated the issue in the *Page 268 case, charged the jury: "As to whether any warning should have been given as to the opening of the flood gates would depend upon all the attendant circumstances. Whether a person in the exercise of ordinary care would have thought such a warning necessary. That is what constitutes the test of negligence, whether a person did that which a person of ordinary care and prudence would have done, or did that which a person of ordinary care and prudence wouldn't have done under similar circumstances. As to whether any warning should be given would depend upon all the attendant circumstances as found by the jury, as to what a person of ordinary care and prudence in the operation of a hydro-electric plant would have done under similar circumstances."
There is no question in this case as to whether or not the appellant was negligent, the sole question being: Did the appellant take the property of the respondent without compensation having been made therefor?
As aforestated, it is manifest that the jury's verdict was only for the damages suffered by respondent from having eleven head of his cattle drowned, and this verdict could readily have been predicated upon the fact that no warning or notice was given to the respondent by the appellant that it intended opening its flood gate.
The situation here is very different from that in the cases of Sheriff v. City of Easley, 178 S.C. 504, 183 S.E., 311, and Baynham v. State Highway Department of South Carolina,181 S.C. 435, 187 S.E., 528, wherein a charge on the subject of negligence was held harmless error.
In the present case, the charge on the subject of negligence was not only erroneous, but it was prejudicial because the jury was empowered to predicate its verdict on a finding that the failure to give warning of the opening of the flood gates so as to enable the respondent to rescue his cattle was negligence. Certainly such failure could not in itself constitute *Page 269 a taking, if the maintenance and operation of the flood gates did not themselves involve a taking.
If under all the circumstances of the case the jury had concluded that there was no "taking" in a constitutional sense in the bare facts of the operation and maintenance of the flood gates, the charge of the Court still enabled them to bring in a verdict for the respondent on the ground of negligence alone. That is to say, the charge of the trial Judge in effect told the jury that even though (as apparently they found) there was no "taking" of the property as the result of the maintenance and operation of the flood gates, they still could find a verdict for the respondent if it was negligence under the circumstances of this case not to give a warning of the intention to open the gates. That clearly put on the appellant a liability for negligence, as distinguished from a liability for the "taking" of property.
To put the matter another way, the appellant admittedly is not liable for the negligence of its officers and agents in failing to establish a warning system, or to give a warning in the present case. The consequences of such negligence are no more a "taking" than would be the destruction of a building by the negligent operation of a county-owned motor vehicle (not engaged in the repair of its highways), or the damage done by the unlawful act of an officer or agent of the county in going on the premises of another and committing a trespass.
The cases of Sheriff v. Easley and Baynham v. HighwayDepartment, supra, are clearly distinguishable from the present case. In the Sheriff case, the maintenance and operation of a sewage disposal plant itself polluted a stream and caused the dissemination of foul odors. In the Baynham case, the construction of the highway and embankment itself obstructed the flow of the water. The present case would be parallel if damage to the respondent had resulted solely from the construction or operation of the flood gates, and without *Page 270 the intervention of a particular act of negligence on a given occasion, to wit, the alleged failure to give a warning.
It cannot be logically said that a charge is harmless error, or merely an erroneous statement of the issues, when the trial Judge charges an inapplicable or incorrect proposition of law under which the jury could find a verdict for the plaintiff where they might have found a verdict for the defendant if the inapplicable or incorrect charge had not been made. That is to say, if in the present case the subject of negligence had not been charged, and the case had gone to the jury solely on the question whether it constituted a taking to maintain and operate the flood gates in a normal manner, can it be said that the jury would still have brought in a verdict for the respondent because no warning of the opening of the gates had been given?
If we are not adequately precise in the application of the rule that error on the part of the trial Judge in stating the issues to the jury will be deemed waived, unless the attention of the trial Judge is called to the error, we will create a very confusing situation for both the profession and the Circuit Judges.
There is considerable loose language on this subject in our decisions, and unless we are careful to draw the line, we will be putting the bench and bar in the embarrassing position pointed out by that great jurist, Honorable L.D. Lide, Circuit Judge, sitting as Associate Justice, in the case of Coleman v. Lurey, 199 S.C. 442, 20 S.E.2d 65.
What is meant by error in stating the issues for the purposes of the disposition of a motion for a nonsuit, a directed verdict, or a directed verdict non obstante veredicto, or for the purposes of an appeal on the ground of alleged error in the charge of the trial Judge?
The rule applies to issues made by the pleadings, or by the contentions of counsel on the trial of the case. It is a very *Page 271 different thing from error on the part of the Circuit Judge in stating the rules of law by which the jury must be guided. And of course it also is a very different thing from the proposition that errors in the charge are not ground for reversal where, reading the charge as a whole, it can be concluded that the jury was not misled by the error.
This case was brought upon the theory of a taking of respondent's property without compensation, and this was the contention of counsel throughout the trial. The trial Judge had stated this to be the issue, but in stating the rules of law by which the jury must be guided, made the charge hereinabove quoted, thereby permitting the jury to predicate a verdict upon a liability for negligence, which was of course error of law, and not a mistatement of issues.
The Baynham case illustrates the point. The trial Judge had charged "that surface water is a common enemy, and everybody has a right to fight it * * *." As the Court said, this was not an issue in the case. There was therefore a misstatement of the issues within the rule.
The able trial Judge in all probability lapsed into this error in his charge by reason of the fact that the complaint of respondent alleged that the flood gates of the appellant were opened "without warning" which resulted in flooding his lands to a depth of several feet. However, the use of the words "without warning" was merely incidental to the statement of respondent's cause of action for a "taking" of his property without compensation, "in violation of Article 2, Section 17, of the State Constitution of 1895. * * *," as set forth in paragraph 7 of the complaint, and of course the failure to give a warning of the intention to open the flood gates was not an issue since such fact could in nowise affect respondent's cause of action.
It is our opinion that the judgment should be reversed and the case remanded for a new trial. *Page 272
The foregoing opinion was prepared as and for the opinion of the Court but has become a dissenting opinion.
CIRCUIT JUDGE G. DUNCAN BELLINGER, ACTING ASSOCIATE JUSTICE, concurs.