Concurring in the opinion of Associate Justice Cothran that the complaints in these two cases cannot be sustained as setting forth a cause of action for damages against the county for negligent construction or repair of a highway under the provisions of Section 1972 of the Civil Code, nevertheless, upon a fair consideration of the complainants' allegations in each of this cases, it is concluded that each of these complaints contains a statement of facts sufficient to constitute a cause of action for the recovery of compensation for the alleged taking of private property for public use under the statutes of this State passed in pursuance of the declaration of the State Constitution that such property shall not be so taken without just compensation being made therefor.
In the exhaustive opinion herein pronounced by Mr. Justice Cothran, the common-law doctrine in force in this State as to surface water is correctly stated to the effect that such water is regarded as a common enemy which each landed proprietor may keep off his own premises by any reasonable means, even though he should thereby throw or keep it on his neighbor's land. See Lawton v. Railway, *Page 262 61 S.C. 548, 39 S.E. 752. But the learned Justice in this opinion has failed to give due consideration to the well-settled exception to or qualification of this rule clearly set forth by Justice Gary, now Chief Justice, in the case ofTouchberry v. Railway Co., 87 S.C. 415, 69 S.E. 877, in the holding there made, which is fully sustained by well-settled authority, that it is an actionable injury for one to collect surface water into an artificial channel, and thence cast the same in concentrated form upon adjacent lands. See 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, 39 S.E. 792.
These cases proceed upon the principle that the owner has a property right in his lands which is invaded by the act of another in casting surface water in concentrated form upon such lands. It is therefore manifest that, if the defendant has invaded the rights of the plaintiff by so casting surface water upon the lands of the latter in concentrated form, such act would amount to the taking of the property of the plaintiff pro tanto; and such taking being charged in the complaint to have been done by the defendant for the construction, alteration, or repair of a public highway, the defendant would thereby be taking private property for public use, for which taking just compensation must be paid as required by Section 17 of Article 1 of the State Constitution.
Rejecting as surplusage the averments of the complaints in the cases here at bar in so far as they charge negligence by the defendant in the construction of the highway, there still remain allegations sufficiently charging the taking of the property of the plaintiff for public use by the defendant, and a consequent liability of the defendant to make compensation therefor. It is well established in this State that such an action for compensation for the taking of private property for public use may be maintained in this State *Page 263 where the right to compensation is denied by the defendant. See Cureton v. Railway, 59 S.C. 371, 37 S.E. 914; Railwayv. Reynolds, 69 S.C. 481, 48 S.E. 476, and cases there cited.
For these reasons, the circuit orders overruling the demurrers to these complaints should be affirmed.
MESSRS. SEASE, BOWMAN, and TOWNSEND, Circuit Judges, concur.