The record contains this statement: "Before rendition the jury came into the courtroom and asked the presiding Judge whether, after the verdict in plaintiff's favor, the plaintiff could ever recover anything more, but his Honor declined to further instruct them." It is true, the presiding Judge, in his charge, had instructed the jury. "I charge you as a proposition of law that you are limited in your consideration, if you conclude that the plaintiff is entitled to damages, you are limited in your consideration as to the kind of damages plaintiff is entitled to, to the period mentioned in his complaint, that is, 1904, from the erection of the dam to the time of the commencement of this action — what is the date? The 27th of September, 1905. If you find the plaintiff is entitled to recover, you are limited to that period. Now, when you come to the consideration, it is alleged here the destruction of the crops of 1904 and 1905, and further alleged injuries to the plaintiff in his person, to his family, and to his property." But the request of the jury for further instructions showed clearly that they did not understand the charge on this subject. Within certain limits the trial Judge may exercise his discretion in giving or refusing to give additional instructions in response to an inquiry from the jury. But where the inquiry from the jury appears to be made in good faith, and refers to a material issue of law, it is the right of the jury to submit it, and the duty of the Judge to answer it. It is almost universally held that it is not improper to answer such questions from the jury, and the following authorities lay down the rule that it is the duty of the trial Judge to answer them: 11 Enc. Pl. Pr., 284; Bank v. McWilliams, 2 J.J. Marsh *Page 407 (Ky.), 253; Lumsden v. Chicago etc. R.R. Co. (Tex.),73 S.W. 428; King v. State (Ga.), 12 S.E., 943.
Here there was nothing to indicate that the jury, in asking for further instructions, were not actuated by a sincere desire to reach a just verdict, and their inquiry bore directly on one of the vital issues made by the pleadings. The importance of the inquiry becomes still more apparent, when it is considered that it must have been quite difficult for the jury to draw the exact line between those injuries to the plaintiff set out in the complaint and the evidence, as inflicted up to the commencement of the action, and those which were continuing and permanent. The evidence as to the extent and nature of the damage was conflicting. If the jury had clearly understood the view of the presiding Judge, that their verdict must be limited to damages accruing up to the commencement of the action, and that this would not be a bar to a suit for damages accruing thereafter, their verdict might have been for a smaller sum. As it is, there is no way for determining whether the verdict is for all damages or only for damages which had accrued up to the commencement of the action. This result of the refusal of the Circuit Judge further to instruct the jury is highly prejudicial to the defendant; for if the verdict covers future damages, it should be available to the defendant as a complete defense to the demand for injunction or any other action for damages. If the verdict stands, the plaintiff may collect a verdict intended as a complete compensation for all his damages, and yet obtain an injunction or another verdict for damages. Thus the error of refusing to respond to the request of the jury may subject the defendant to a double recovery for the same cause of action.
I concur in overruling the other exceptions, but, with respect to subdivision e of the third exception, there is a consideration which it is important to state. The defendant thus sets out as error: *Page 408
"Defendant's fifth request to charge, to wit: `That when a riparian owner so constructs his dam as to leave, in view of all the surrounding circumstances, a reasonable margin of his fall for ordinary freshets, he is not responsible for any injuries to such an owner above him, mediate or immediate, unless he has been negligent in failing to increase the margin of his fall after learning that the margin already allowed was insufficient `for the greatest of ordinary freshets.' The error being that the jury were thus left to conclude that the defendant in building the dam was responsible to the owner above for the injurious results of extraordinary freshets, however careful defendant may have been to provide against the same. And in this connection, and on the same ground, error in charging, at plaintiff's request: `If one uses his own lands for the prosecution of some business from which injury to his neighbor would either necessarily or probably ensue, he is liable if such injury thus result, even though he may have used reasonable care in the prosecution of such business, and in this connection I charge you further, in general, if a voluntary act, lawful in itself, may naturally result in the injury of another or the violation of his legal rights, the actor must at his peril see to it that such injury or such violation does not follow, or he must expect to respond in damages therefor, and this is true, regardless of the motive or the degree of care with which the act is performed.'"
The owner of a water power on a stream has the right to use it, subject to his duty to guard against injury to others, but this duty is not limited to safeguards against ordinary freshets, as the defendant contends. The refusal of the Court to charge the request above quoted, and the instruction which it did give, are in accord with Hunter v.Pelham Mills, 52 S.C. 279, 29 S.E., 727, and Jones v.Ry. Co., 67 S.C. 181, 197, 45 S.E., 188. In the latter case the principle is thus stated. "Besides, it is not sufficient to exempt the defendant from liability that the *Page 409 damage should have come from its diversion of the water at `unusual heights of floods.' The rule is that whoever proposes to build a bridge over a stream, before placing his piers or other erection tending in any degree to dam the water or divert it from its natural flow, must study the country through which it flows, its usual freshets, and occasional great floods, which are not usual, but which experience teaches may occur at any time, and use reasonable care and skill to avoid producing or increasing damage from these sources. He is not required to anticipate and use precautions against extraordinary or unprecedented floods. Whether a flood falls within one or the other of these classes is a question of fact, and where there is any conflicting evidence the issue can only be decided by a jury."