Under the peculiar circumstances of this case, especially the fact that the plaintiff's first action was predicated in part upon damages caused by the cofferdam, which was a temporary *Page 158 structure, I concur in the conclusion that this action is not barred by the first. I do not think, however, that the proviso in the statute "that said corporation shall be liable for all damages caused by building said dam," should be construed to allow all other riparian owners, who have been or may be damaged by the dam, to bring more than one action to recover all damages, past, present and future. I do not think the legislature intended, by adding that proviso, to charge the general rule of law, which had been well settled, that where a permanent structure is erected by lawful authority, and cannot, therefore, be abated or removed, all damages caused by it, past, present and prospective, must be recovered in one action. The rule is a wise and wholesome one. It was intended to prevent multiplicity of actions, and it is supported by the great weight of reason and authority. See Nunnamaker v. Water Power Co., 47 S.C. 485,25 S.E. 751, 34 L.R.A. 222, and cases cited, and the authorities cited by respondent. The intention of the legislature to depart from such a wise and wholesome rule of law would have been clearly expressed and not left to a doubtful inference, especially when the language used is susceptible of another meaning and purpose, which fully accounts for its use. The preamble to the statute shows that it was applied for and enacted because there was some doubt of the power of the company, under a charter granted by the Secretary of State, to obstruct a navigable stream by a dam. The proviso was added, I think, out of abundance of caution, to anticipate and meet the contention which might possibly be made, that because the State gave authority to build the dam, the company building it would not be liable for any damages caused by it. It was probably intended also to anticipate and obviate the contention that the company would be liable only for damages caused by the negligence in the construction of the dam, as that construction had been placed upon statutes authorizing the building of railroads on lands acquired by grant or condemnation. Lampley v. R. Co., *Page 159 71 S.C. 156, 50 S.E. 773, which was changed by statute. Civil Code, sec. 3115. The construction anticipated by the legislature was, in fact, contended for by the company, but under the terms of the proviso, was denied by the Court.Sutton v. Catawba Power Co., 76 S.C. 320, 56 S.E. 651.
It seems to me to be a strained construction of the language of the proviso to hold that, because it provides that the company shall be liable for all damages caused by the dam, there may be as many actions as a landowner damaged may see fit to bring. There is no more difficulty in recovering all damages, past, present and prospective, in one action than in doing so in one proceeding under the condemnation statute; and this construction of the proviso harmonizes it with the general rule of law and proceedings, under the condemnation acts.
MR. JUSTICE GAGE concurs in the view expressed by MR. JUSTICE HYDRICK.