October 31, 1927. The opinion of the Court was delivered by The following was prepared as a dissent from the opinion of Mr. Justice Cothran, but as Justices Blease and Stabler concur in the views therein expressed, the opinion becomes *Page 333 the judgment of the Court, which is that the judgment of the Circuit Court be affirmed.
I cannot agree with the opinion of Mr. Justice Cothran that the judgment of the lower Court ought to be reversed; on the contrary, I think that it ought to be affirmed for the reasons which follow:
This is an action brought by respondent against the appellant, for the purpose of recovering damages caused by the acts on the part of the defendant in preventing the flow of water from a pond on plaintiff's property, by the erection of an embankment without adequate provision for drainage; the action being based upon the grounds that defendant had created and maintained a nuisance, and that the said acts of the defendant amounted to the taking of her property without due process of law, and without just compensation being first made. The answer was a general denial. At the trial, the defendant moved for a directed verdict, which was refused. The grounds of the motion and the exceptions on the part of the defendant will be set out in the report of the case. The jury found a verdict for the plaintiff in the sum of $500.
I think that this case is ruled by the principles laid down by that acute legal mind, the late Chief Justice Gary, in Baltzeger v. Railway, 54 S.C. 242;32 S.E., 358; 71 Am. St. Rep., 789:
"The only exception to the rule that surface water being a common enemy, every landowner has the right to deal with it in any such manner as he may see fit, is that it is subjectto the general law in regard to nuisances, if its accumulationhas become a nuisance per se, as for example, whenever ithas become dangerous at all times and under all circumstancesto life, health or property." (Italics added).
Judge Wilson charged the jury as follows on the point really at issue in this case: "* * * Surface water is a common enemy; and, *Page 334 while you have the right to protect yourself from surface water, you can protect yourself, but you cannot back it on another there at all to create a nuisance, you cannot do that. I understand that's decided in half the cases you mentioned, and you can back the water and protect yourself; and you cannot back it on another person's land, on another's land, and in such a way as to create a nuisance and destroy his property."
It would be hard to find a clearer or fairer statement of the law than that, and it is supported by the authorities, but, even if no Court had ever decided such a principle, it carries on its face its own best commendation.
These principles were recognized in Lawton v. Railway,61 S.C. 548; 39 S.E., 752, in which case, however, the allegations of the complaint were not broad enough to cover this principle; also in the following other cases: Brandenbergv. Zeigler, 62 S.C. 18; 39 S.E., 790; 55 L.R.A., 414; 89 Am. St. Rep., 887; Cain v. Railway, 62 S.C. 25;39 S.E., 792; Hopkins v. Clemson College, 221 U.S. 636;31 S.Ct., 654; 55 L.Ed., 890; 35 L.R.A. (N.S.), 243; and Faust v. Richland County, 117 S.C. 251;109 S.E., 151.
Indeed, we find defendant in its exceptions also agreeing that this is a correct proposition of law, but denying its application to the case at bar.
"Nuisance" is thus defined by Bouvier:
"Anything that unlawfully worketh hurt, inconvenience or damage. 3 Bla. Com. 5; 216; Cooley, Torts, 670. That class of wrongs that arises from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal. * * * A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. It produces damage to but one or two persons, and cannot be said to be public. * * * If a thing is calculated to interfere with the comfortable *Page 335 enjoyment of a man's house, it is a nuisance. * * * Every citizen holds his property subject to the implied obligation that he will use it in such a way as not to prevent others from enjoying the use of their property. * * * A mixed nuisance is one which, while producing injury to the public at large, does some special damage to some individual or class of individuals (Wood, Nuisance, 35). * * * Keeping hogs or other animals so as to incommode his neighbor and render the air unwholesome. * * * The remedies are by an action for the damage done by the owner in the case of a private nuisance, * * * or by any party suffering special damage in the case of a public nuisance. * * * Every continuance of a nuisance or recurrence of the injury is an additional nuisance forming in itself the subject-matter of a new action. Sloggy v. Dilworth,38 Minn., 179 [36 N.W., 451], 8 Am. St. Rep., 656." 3 Bouvier, Law Dictionary (1914), p. 2379.
We quote the following from the opinion of Mr. Justice Cothran in this case:
"The right of the plaintiff to recover damages for the continued obstruction of the ditch and to require its removal necessarily depends upon her right to open a ditch from the pond and discharge its water upon the railroad company's right of way, a lower proprietor."
In the complaint in this case in addition to alleging the stopping up of a ditch, the plaintiff also alleged the erection of an embankment. All through the complaint, the allegation of the erection of the embankment is always made in addition of the stopping up of the ditch. In the fifth paragraph of the complaint we find:
"Still maintains said embankment of earth and keeps said ditches and water courses filled in to the present and continuous damage of this plaintiff."
In paragraph 6 we find: *Page 336
"That the defendant herein, by erecting said embankment and filling in and stopping up the above-mentioned ditches or water courses, has built a dam which prevents the natural flow of the water which had theretofore been drained off the plaintiff's land through said ditches and water courses, so that said water has been, and is now, backed up and accumulated on the lands above described," etc.
In our judgment, the allegations as to embankmentand water courses are broad enough to cover other ways of ponding the water in addition to the obstructionof the ditch mentioned in Justice Cothran's opinion. The Code requires the construction of pleadings in aid of substantial justice, and it is the rule that the proof of one specification of negligence and wantonness will entitle plaintiff to a verdict, if the jury sees that a case has been made out.
"A railroad, that stops a drainage ditch on its own land for the purpose of storing cross-ties thereon, is not liable to the upper landowner for damages caused by the resulting accumulation of surface water on the land of adjoining owner, in the absence of a showing that a nuisance wascreated." Rivenbark v. A.C.L.R. Co., 124 S.C. 136;117 S.E., 206.
The case at bar is a case where there was evidence sufficient to go to the jury on the question of whether or not a nuisance was shown to have been caused by the embankment and filling up of the ditch. The question is, not whether the plaintiff had a right to open the ditch in the first instance, but whether or not the defendant had the rightto close the ditch and raise the embankment as alleged inthe complaint.
"The well-settled rule that an easement may be created by prescription, or, more properly speaking under the modern doctrine by presumption, applies to the right of drainage of surface waters through the lands of another. But the right to run a drain through another's land can be *Page 337 created by actual use only where such use has been adverse, peaceable, uninterrupted, and continued for the prescriptive period." 27 Ruling Case Law, 1162.
No good could come of going over the testimony, but I am satisfied that there was enough testimony to warrant a reasonable jury in finding the verdict that was found under the pleadings and law of this case. It is clear from the testimony that the ditch had been there longer than the prescriptive period, and it was for the jury to say whether or not defendant had the right to raise the embankment, stop up the ditch, and create a nuisance, and whether or not a nuisance was created and maintained. The question whether or not the nuisance "had become dangerous at all times and under all circumstances to life, health, or property" was for the jury.
The liability and probability of the ponds overflowing at every rain, and of drying up and creating mosquitoes during every dry spell, might, or might not, make the place a source of perpetual danger to life, health, and property, as the jury might view the testimony and circumstances. That was peculiarly a question for the jury, and there was a sufficient latitude in the pleadings and testimony to make a jury question on the matter of a continuing nuisance.
As an authority for the right of the plaintiff to maintain this action, I simply refer to 20 Ruling Case Law, 465, 466, 467, et seq.
For these reasons, and for other reasons set out by respondent's attorney in his "Points and Authorities," I think the judgment of the lower Court ought to be affirmed.
The majority of the Court having concurred in this opinion, the judgment below is affirmed.
MESSRS. JUSTICES BLEASE and STABLER concur.
MR. CHIEF JUSTICE WATTS and MR. JUSTICE COTHRAN dissent. *Page 338
ON PETITION FOR REHEARING