November 11, 1921. The opinion of the Court en banc was delivered by The only question properly and specifically raised is by the second exception. The cases of Lawton v. Railway;61 S.C. 548, 39 S.E. 752, Brandenberg v. 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, and Hopkins v. Clemson College,221 U.S. 636, 31 Sup. Ct. 654, 55 L.Ed. 890, 35 L.R.A. (N.S.) 243, clearly show that if an individual, instead of the defendant, had flooded the lands of the plaintiff in the manner alleged in paragraph 6 of the complaint, he would have subjected himself to an action for damages.
But there is even a stronger reason why the demurrer was properly overruled, to wit: The overflowing of the plaintiff's lands in the manner alleged in the complaint was in violation of the constitutional provisions prohibiting the taking of property without due process of law, and likewise without just compensation being first made.
In Hopkins v. Clemson College, 221 U.S. 636,31 Sup. Ct. 654, 55 L.Ed. 890, 35 L.R.A. (N.S.) 243, the plaintiff sued the defendant for damages to his farm resulting from the college having built a dyke, which forced the waters of the Seneca River across his land, whereby the soil was washed away and the land rendered unfit for agricultural purposes.
The Supreme Court of the State dismissed the complaint, on the ground that the State was a necessary party, and had not consented to be sued. Thereupon the plaintiff sued out a writ of error to the United States Supreme Court. In that case the United States Supreme Court said:
"Neither a State nor an individual can confer upon an agent authority to commit a tort, so as to excuse the perpetrator. In such cases the law of agency has no application — the wrongdoer is treated as a principal and individually liable for the damages inflicted and subject to injunction *Page 256 against the commission of acts causing irreparable injury. * * *
"Neither public corporations nor political subdivisions are clothed with that immunity from suit which belongs to the State alone by virture if its sovereignty. InLincoln County v. Luning, 133 U.S. 520, 530, the Court said that: `While the county is territorially a part of the State, yet politically it is also a corporation, created by and with such powers as are given to it by the State. In this respect it is a part of the State only in that remote sense in which any city, town, or other municipal corporation may be said to be a part.' The Court there held that the Eleventh Amendment was limited to those cases in which the State is the real party, or party on the record, but that counties were corporations which might be sued. * * * Undoubtedly counties, cities, townships, and similar bodies politic often have a defense which relieves them from responsibility where a private corporation would be liable. But they must at least make that defense. They cannot rely upon freedom from accountability, as could a State. * * * If the State had in so many words granted the college authority to take or damage the plaintiff's property, for its corporate advantage without compensation, the Constitution would have substituted liability for the attempted exemption. But the State of South Carolina passed no such Act, and attempted to grant no such immunity from suit, as is claimed by the college. * * *
"But an examination of the cases cited, in any respect similar to this, will show that they involve questions of liability in a suit, rather than immunity from suit. Most of them were actions for torts committed, not by the public corporation itself, but the officers of the law. * * * * * * That general rule is of force in South Carolina, as appears from Gibbs v. Beaufort, 20 S.C. 213, 218, cited *Page 257 in the opinion of the Court below, where it was said that a municipal corporation, instituted for the purpose of assisting the State in the conduct of local civil government, is not liable to be sued in an action of tort for nonfeasance or misfeasance of its officers, in regard to their public duties, unless expressly made so by statute.' But the plaintiff is not seeking here to hold the college liable for nonfeasance or misfeasance either of its own officers or officers of the public. This is a suit against the college itself for its own corporate act in building a dyke, whereby the channel had been narrowed, the swift current had been diverted from the usual course across the plaintiff's farm, and, as is alleged, destroying the banks, washing away the soil, and for all practical purposes as effectually depriving him of his property as if there had been a physical taking. * * * "For protecting the bottom land, the college, for its own corporate purpose and advantages, constructed the dyke. In so doing it was not acting in any governmental capacity. The embankment was, in law similar to one which might have been built for private purposes by the plaintiff on the other side of the river. If he had there constructed a dyke to protect his farm, and in so doing had taken or damaged the land of the college, he would have been sued and held liable. In the same way and on similar principles of justice and legal liability, the college is responsible to him if, for its own benefit and for protecting land which it held and used, it built a dyke which resulted in taking or damaging the plaintiff's farm. * * * These suggestions, though made in a plea to the jurisdiction, afford no reason why the college should be granted immunity from suit, when it is claimed that, in violation of the Constitution, it has taken private property for its corporate purposes without compensation. * * * And if the facts hereafter warrant it, the college may be enjoined *Page 258 against further acts looking to the maintenance or reconstruction of the dyke."
The judgment of the State Court was reversed. We have quoted somewhat at length from the case of Hopkinsv. Clemson College, supra, for the reason that its authority is binding upon the Courts of the several States; and it is contended that our decisions are in irreconcilable conflict.
In the cases of Irvine v. Greenwood, 89 S.C. 511;72 S.E. 228, 36 L.R.A. (N.S.) 363, and Triplett v. Columbia,111 S.C. 7, 96 S.E. 675, 1 A.L.R. 349, this Court has cited the Hopkins Case with approval.
The facts in the Triplett Case alleged by the plaintiff were, in substance, as follows: That the defendant, through its negligence and mismanagement, permitted a large pool of stagnant water, containing large quantities of decaying matter, to remain upon one of the streets of Columbia; that the plaintiff, who resided near the said pool, was caused to contract colitis, whereby she was made sick, to her damage in an alleged amount mentioned in her complaint.
A motion was made to dismiss the complaint, and the sole question was whether the municipality was liable under Section 3053 of the Code of Laws 1912. The Circuit Court ruled that she was not, and dismissed the complaint. On appeal to the Supreme Court the judgment of the Circuit Court was affirmed. In delivering the opinion of the Supreme Court, Mr. Justice Hydrick reviewed the decision in the case of Mayrant v. Columbia, 77 S.C. 281,57 S.E. 857, 10 L.R.A. (N.S.) 1094, saying:
"Though the decision in the Mayrant Case was right, it was not put upon the right ground. In the Mayrant Case the wrong was alleged to have been caused by negligence in raising the level of the street, closing up the existing surface drains, and so negligently installing drain pipes of insufficient size and fall to carry off the surface *Page 259 water (which had theretofore been carried off by the surface drains) that it was thrown and ponded upon plaintiff's lot. * * * If we follow our previous decisions construing Section 3053, the conclusion is inevitable that the decision in the Mayrant Case was rested upon an untenable ground. It might have been rested upon * * * Section 3026 of the Civil Code of 1912. The decision might have also been rested upon the principle upon which the decision of this Court in Hopkins v. Clemson College,77 S.C. 12, was reversed by the Supreme Court of the United States (221 U.S. 636), in which liability was imposed on the ground that the diversion of the waters of Seneca River upon the plaintiff's land was tantamount to a taking thereof without compensation."
He then refers to the consideration of that ground inIrvine v. Greenwood, supra. Turning to that case, we find that Mr. Justice Woods, who delivered the opinion of the Court, used this language:
"In Hopkins v. Clemson College, 77 S.C. 12, 57 S.E. 853 the question was whether Clemson College, a corporation created for a public purpose, was liable for overflowing plaintiff's land in constructing a dyke to protect the crops on the college lands from the floods in the Seneca River This Court held that the case fell within the rule laid down in Gibbes v. Beaufort, 20 S.C. 213, Dunn v. Barnwell,43 S.C. 398, 21 S.E. 315, and the other cases decided in this State cited above, and that therefore the plaintiff could not recover. On appeal the Supreme Court of the United States reversed the judgment of this Court holding that the flooding of plaintiff's land was the taking of private property without due process of law, and that the taking was by the corporation itself for corporate purposes, and not by its officers or agents. As we understand, it was on these grounds that the case was distinguished from Gibbesv. Beaufort, supra, and other like cases decided in this *Page 260 State. The doctrine of the decision, however, is not applicable to this case, for the reason that here there is no taking of private property by the corporation, but an injury resulting in death from the alleged failure of an employee of the municipality to perform the duties imposed on him by the municipality."
It will thus be seen that this Court recognized the fact that the case of Dunn v. Barnwell, 43 S.C. 398,21 S.E. 315, 49 Am. St. Rep. 843, and other cases announcing the same doctrine, are inapplicable to cases involving the taking of property without due process of law or just compensation being first made, and, in this respect, that they were practically overruled by the case of Hopkins v. ClemsonCollege.
We call attention also to the fact that Mr. Justice Hydrick, in the Triplett Case, did not mention the case ofHopkins v. Clemson College as applicable to the facts in the Triplett Case, but stated that the judgment in the Mayrant Case could be sustained by the Hopkins Case, on the ground that in the Mayrant Case there was a taking of private property without compensation. The right to throw surface water upon the lands of another was involved, both in the Mayrant Case and the Triplett Case. The reason why he did not apply the same doctrine as to taking property without due process of law in both cases was because the facts in the Mayrant Case were sufficient to constitute a cause of action against an individual, and brought the case within the doctrine announced in Brandenburgv. Zeigler, 62 S.C. 18, 39 S.E. 790, 55 L.R.A. 414, 89 Am. St. Rep. 887, while the facts in the Triplett Case were not sufficient to constitute a cause of action, even if the defendant in that case had been an individual, which is the true test, as the case of Hopkins v. ClemsonCollege shows that in cases involving the taking of property without due process of law the governmental subdivisions *Page 261 of the State are to be regarded as if they were individuals. The case of School District v. Marion County,114 S.C. 382, 103 S.E. 767, is sustained by the Hopkins Case.
If these were not the reasons which governed Mr. Justice Hydrick, then he was in error in stating that the judgment in the Mayrant Case was right, as otherwise the judgment in both cases should have been the same.
Affirmed.
MR. JUSTICE WATTS concurs.
MR. JUSTICE FRASER: I concur, under School District v.Marion County, 114 S.C. 382.
MESSRS. MEMMINGER, DeVORE, FRANK B. GARY, PEURIFOY and SHIPP, Circuit Judges, concur.