I think that the defendants' motion for a directed verdict should have been granted, and, therefore, respectfully dissent from the conclusion to the contrary, announced in the opinion of Mr. Justice Stabler, for the reasons which follow:
The action is for the recovery of damages on account of an alleged injury sustained by the plaintiff, the owner of certain lands abutting upon a public highway, in consequence of the raising of the grade of the highway by the railroad company, in the construction of its railroad. The railroad, as constructed in part upon lands conveyed to the company by the plaintiff, passes through a cut across the highway and under a bridge spanning the cut and connecting the broken ends of the highway. The raising of the grade of the highway was caused by the construction of approaches to the overhead bridge.
The plaintiff makes no complaint of the actual construction of the railroad over the land conveyed by him, but insists that his land outside of that conveyed, of which the latter was a part, which abutted upon the highway, has been damaged by the raising of the grade of the highway, rendering the lots inaccessible and unsalable. *Page 308
The main defense of the railroad company is that in the deed which the plaintiff executed, conveying the lands to it, the plaintiff renounced all damages, incidental or consequential, which might accrue to his adjacent lands by reason of the construction of the railroad upon the lands conveyed.
The case was tried before his Honor, Judge Featherstone, and a jury; the trial resulting in a verdict in favor of the plaintiff for $15,000.00. The defendants have appealed from the judgment entered upon that verdict.
The undisputed facts of the case are these:
For quite a number of years before the commencement of the action involved in this appeal there had been numerous efforts on the part of the people of the City of Spartanburg to bring about the elimination of what was known as "East Main Street Crossing" of the Southern Railway Company in the City of Spartanburg.
In the early part of the years 1924 appellants offered to abandon this crossing by building a belt line around the city, and to build certain car repair shops at Hayne Junction, if the City of Spartanburg would contribute $250,000.00 to the railway company, to be used in the construction of the belt line, which the city agreed to do.
The plaintiff owned a tract of about 160 acres, lying on both sides of State Highway No. 8, known also as East Main Street extension, just outside of the City of Spartanburg, valuable, as claimed by him, for residential and business locations. It was deemed advisable by the railway company, in constructing the belt line referred to, to locate it in part upon the plaintiff's land. They accordingly obtained from the plaintiff and his brother an option, dated March 19, 1924, to purchase, at the price of $11,000.00, two separate parcels of his land; parcel No. 1, on the west side of the highway, and on both sides of the proposed belt line, containing 0.37 acre, and parcel No. 2, on the east side of the highway, and on both sides of the proposed belt line, containing 1.36 acres. *Page 309
The option contained this statement:
"Said consideration is to be in full settlement of all damages to our property, as well as for the purchase price thereof."
The option in due time was accepted by the railway company, and, on May 31, 1924, the plaintiff, who had succeeded to the interest of his brother, executed and delivered to the railway company a fee-simple title deed to said parcels of land, which contained the following provision:
"It is understod by the grantors that the land hereinbefore described and hereby conveyed will be used by the grantee in the construction, maintenance, and operation of a railroad, and the grantors, for themselves, their heirs and personal representatives, further agree that the consideration hereinbefore recited and paid by the grantee includes, not only the value of the said land hereby conveyed, but also all and any incidental or consequential damages accruing to other adjacent lands of the grantors from or on account of construction and maintenance of said railroad upon the land hereinbefore described and hereby conveyed."
The railway company having determined to construct an underpass at the point where the belt line would cross the highway, finding it necessary, in doing so, to raise the grade of the highway in its approach to the overhead bridge, applied to the county authorities for permission to raise the grade. A hearing was had, and the application was refused (I assume upon the ground that the highway had become a part of the State system and under the jurisdiction of the State Highway Commission).
Thereafter the railway company made application to the State Highway Commission for permission to elevate the highway as indicated above. After a hearing the State Highway Commission passed the order set out in the record, granting the railway company permission to elevate and cross the highway upon certain terms and conditions, one of which was: *Page 310
"That Southern Railway Company hereby assumes all responsibility for any damage that may arise from the change or elevation of the grade of said highway from Station 5 plus 00 `end of present paving' on west side of proposed crossing to Station 2 plus 38 `end of present paving' on east side of proposed crossing as shown by the profile plan filed with said petition, and hereby waives the right to require that the State of South Carolina, the State Highway Department, or the County of Spartanburg, or any of their agents or servants, be made parties to any action that may be brought as a result of any damage as aforesaid."
The railroad company then proceeded with the necessary grading to effect a connection of the old bed of the highway with the ends of the overhead bridge. The old bed of the highway was considerably above the level of the plaintiff's abutting lands. The witnesses differed as to how much; but the plaintiff in his testimony conceded that it was between 4 and 5 feet.
The evidence tended to show that the raising of the grade of the highway affected a frontage of 380 feet of the property on one side of the highway, and 390 feet on the other, and that the grade was raised on an average of 3 1/2 feet.
Much testimony was taken pro and con, as to the diminution in the market value of the property by reason of the raising of the grade, the estimates ranging between $3,500.00 and $35,000.00.
I propose to confine my discussion to what I conceive to be the main question in the appeal, the determination of which should, in my opinion, dispose of the case: Is theplaintiff estopped by his deed from claiming compensationin damages for the injury alleged to have been caused to hisadjacent land by the raising of the grade of the highwayupon which it abuts?
I. For the moment I shall disregard that portion of the deed from the plaintiff to the railroad company, covering *Page 311 the two parcels of land, which contains a renunciation of all incidental and consequential damages to his adjacent lands, by reason of the construction of the railroad. I shall consider the deed, then, as if that provision had been omitted, and that the deed had been simply a conveyance of the two parcels for railroad purposes.
II. Under these circumstances I think that it is thoroughly settled everywhere that, when one conveys to a railroad company a right of way over his land, for the construction, maintenance, and operation of a railroad, and receives a substantial consideration therefor, he is conclusively presumed to have accepted that consideration in full settlement of all damages which he could have set up in a condemnationproceeding.
In Chicago, R.I. P. Ry. Co. v. Smith, 111 Ill., 363, it was held:
"Where a person conveys a right of way over his land, it will be conclusively presumed that all the damages to the balance of the land, past, present and future, were included in the consideration paid him for his conveyance, the sameas an assesment of damages on a condemnation would be presumed to embrace."
In Watts v. Norfolk Western R. Co., 39 W. Va., 196;19 S.E., 521; 23 L.R.A., 674; 45 Am. St. Rep., 894, it is said:
"The fact that the company claims not under condemnation, but under the purchase or grant, does not alter the case, and entitle Watts to recovery for injury from the wall, because a grant of right of way is a waiver of all such damagesas are assessable under an inquisition, as, in such case, if the grantor did not intend to waive damages he should have provided against injury [citing cases]. Though, in such case, there be damage, it is damnum absque injuria."
In Kirk v. Kansas City S. G.R. Co., 51 La. Ann., 667; 25 So., 457, the Court said: *Page 312
"Claims which would have been within, and would have gone to make up, the original damages or compensation that would have been assessed against, and paid by, the railroad company, as the condition precedent to the condemnation of the right of way in an expropriation proceeding, must be held to have been considered and included by the parties, as being within the consideration agreed upon when they balanced advantages and disadvantages."
In Illinois Cent. Railroad Co. v. Anderson, 73 Ill. App. 621, it was held:
"Cases between a railroad company and a grantor or condemnee fall in the same class. In such cases the consideration for the grant or the damages assessed on condemnation include, once for all, the full compensation to be paid for any lawful use that fairly falls within the terms of the grant or the specifications of the condemnation."
In St. Louis R. Co. v. Van Hoorebeke, 191 Ill., 633;61 N.E., 326, the Court said:
"Where a railroad company obtains a right of way by purchase from the landowner, having power under the Constitution and law to do so, all the incidents attach to such right as are acquired by eminent domain when the right of way is obtained by condemnation. * * * In other words, a railroad company acquires the same rights and privileges under a private grant as to the construction and operation of its road, as under a right of way acquired by condemnation, where it has the power, under the law, to receive by grant and to acquire by condemnation."
"A conveyance of land to a railroad company for an agreed consideration presumptively embraces in such consideration all reasonably necessary damages to adjoining land, which have already been caused, or which may be caused by the construction and maintenance of the road [I interpolate, in a reasonably proper manner], and which mighthave been recovered in condemnation proceedings; and *Page 313 therefore in the absence of any showing to the contrary, such conveyance relieves the company from all liability for such damages, and from other damages which the terms of the instrument or the attendant circumstances expressly or impliedly show to have been included in the compensation paid." 33 Cyc., 161.
"The conveyance of land to a railroad for a right of way, or the execution of a release of damages for its construction, usually has the same effect as the assessment and paymentof damages under proceedings for condemnation, and the land owner can claim no further damages for the legal and proper construction of the railroad." 2 Elliott R. R. (3d Ed.), § 1157.
In 22 R.C.L., 892, after stating the rule in the exact terms of the quotation from 19 Ann. Cas., 335, set out below, the author states:
"The sale of a right of way to a railroad company operates as a remission by the landowner of all damages to which he would have been entitled in a proceeding to condemn the right of way. * * *"
In Hord v. Holston River R. Co., 122 Tenn., 399;123 S.W., 637; 135 Am. St. Rep., 878; 19 Ann. Cas. 331, the Court said:
"An agreement between a landowner and a railroad company to sell the latter a right of way across the tract of the former covers all damages, of whatever sort, to that tract, to which the landowner would have been entitled in a regular condemnation proceeding. He is presumed to have contemplated and arranged for all such damages in fixing the consideration for the contract, and he is therefore remitted to it."
III. I do not apprehend that there could arise a question as to the right of the plaintiff upon condemnation proceedings, to have insisted upon the injury to his adjacent lots by the raising of the grade of the highway, as an element in the measure of his compensation. *Page 314
If the parties had not agreed upon a price to be paid to the plaintiff for the two parcels of land, to be used for the construction, maintenance, and operation of the railroad, and it had been necessary for the company to acquire them by condemnation, can there be any doubt that the plaintiff, as he had the right to do, would have claimed, as an element of the compensation to be awarded him, the damage to the adjacent land by the raising of the grade of the highway? The evidence that the plans for the construction of the railroad contemplated the raising of the grade was readily accessible, for the option given by the plaintiff referred him to the plat which had been filed with the Chamber of Commerce, and it showed the elevation of the bridge and the inevitable raising of the grade of the highway.
In Johnson v. Southern R. Co., 71 S.C. 241;50 S.E., 775; 110 Am. St. Rep., 572, the Court said:
"The condemnation statutes allow an assessment not only for the quantity and value of the land which may be required by the railroad company, but for any special damage which the owner may sustain by reason of its construction. * * * This would certainly include the damages resulting from the construction of the embankment in a proper manner."
In Watts v. Norfolk Western R. Co., 39 W. Va., 196;19 S.E., 521; 23 L.R.A., 674; 45 Am. St. Rep., 894, the Court said.
"If, instead of acquiring the right-of-way land by purchase, the company had caused it to be condemned for its use, the compensation to Fry would include, not simply pay for the land actually taken, but damages to the residue of the tract. * * * Shenandoah, etc., R.R. Co. v. Shepherd,26 W. Va., 672; 2 Wood's Railway Law, Secs. 258, 259. The sum is to cover past, present, and prospective damages to such residue that are the natural, necessary, or reasonable incident to the work."
"Where land is acquired for a railroad right-of-way, it will be presumed that the damages incident to the use of *Page 315 farm crossings for cattle, etc., were considered in fixing the compensation paid for the right-of-way, whether it was acquired by agreement or compulsory proceedings." Libby v.Canadian Pac. R. Co., 82 Vt., 316; 73 A., 593.
In St. Louis R. Co. v. Van Hoorebeke, 191 Ill., 363;61 N.E., 326, the Court said:
"Had the right-of-way been lawfully acquired by condemnation, appellees (landowners) would have received compensation for the value of the strip of land, and also an assessment of all damages to the residue of their tract to result from the construction and operation of the road. `The rule is that the appraisement of damages in a case of condemnation embraces all past, present, and future damages which the improvement may thereafter reasonably produce.'"
In 10 R.C.L., 153, it is stated:
"When part of a parcel of land is taken by eminent domain, the owner is not restricted to compensation for the land actually taken; he is also entitled to recover for the damage to his remaining land. In other words he is entitled to full compensation for the taking of his land and all its consequences; and the right to recover for the damage to his remaining land is not based upon the theory that the damage to such land constitutes a taking of it, nor is there any requirement that the damage be special and peculiar or such as would be actionable at common law; it is enough that it is a consequence of the taking. The entire parcel is considered as a whole, and the inquiry is, How much has the particular public improvement decreased the fair market value of the property, taking into consideration the use for which the land was taken and all reasonably probable effects of its devotion to that use?"
See, also, U.S. v. Welch, 217 U.S. 333; 30 S.Ct., 527;54 L.Ed., 787; 28 L.R.A. (N.S.), 385; 19 Ann. Cas., 680. Sharp v. U.S., 191 U.S. 341; 24 S.Ct., 114;48 L.Ed., 211. St. L., I.M. S.R. Co. v. Maxfield Co., *Page 316 94 Ark. 135; 126 S.W. 83; 26 L.R.A. (N.S.), 1111. Wabash,St. Louis P.R. Co. v. McDougall, 126 Ill., 111;18 N.E., 291; 1 L.R.A., 207; 9 Am. St. Rep., 539. LakeErie W.R. Co. v. Scott, 132 Ill., 429; 24 N.E., 78; 8 L.R.A., 330. I.B. W.R. Co. v. Allen, 113 Ind., 308;15 N.E., 451; 3 Am. St. Rep., 650. Gautier v. Hudson,55 N.J. Law, 88; 25 A., 322; 17 L.R.A., 785. Beck v.R. Co., 148 Pa., 271; 23 A., 900; 33 Am. St. Rep., 822.Hinckley v. Seattle, 74 Wn., 101; 132 P., 855; 46 L.R.A. (N.S.), 727; Ann. Cas. 1915-A, 580.
If, therefore, the plaintiff is presumed by his deed to have conveyed all right to damages which would have been open to him in case of condemnation, and his right to set up damages on account of injury to his adjacent land was open to him in a condemnation proceeding, it follows that he is presumed by his deed to have conveyed his right to such damages.
IV. The discussion up to this point, as I have stated, has proceeded upon the theory that what I consider the express renunciation of the plaintiff, in the deed, to any and all damages, incidental or consequential, to his adjacent land, resulting from the construction of the railroad upon the parcels conveyed, was negligible. If I am correct in my conclusions above outlined, it is negligible, except as reinforcing that conclusion.
I come now to a discussion of it, and, for the sake of convenient reference, reproduce that provision:
"The grantors * * * further agree that the consideration hereinbefore recited and paid by the grantee includes, not only the value of the said land hereby conveyed, but also alland any incidental or consequential damages accruing toother adjacent lands of the grantors, from, or on account ofconstruction and maintenance of said railroad upon the landhereinbefore described and hereby conveyed."
The pertinent inquiry arises whether the raising of the grade of the highway was so connected with the construction *Page 317 of the railroad that the injury sustained by the plaintiff on account thereof can be considered incidental to, or consequential from, such construction. If so, there can be no doubt that the plaintiff is now estopped from insisting upon the recovery of damages on that account.
It certainly was a part of the plan of the company in constructing the belt line. That alone, however, is not conclusive; it cannot be considered as so connected with the construction of the railroad that a resulting injury to an abutting owner would generate damages incidental or consequential, unless the entire plan of which it was a material element was a reasonably proper exercise of the right to construct the railroad at that point. I maintain that it was; let us see.
There was, and had been for years, a grade crossing of East Main street in the city of Spartanburg, by the railroad company. The long standing agitation for a belt line around a part of the city, on the north, was due to the dangers and inconveniences attending that situation — a crossing at grade of a principal street in the city. The belt line, as proposed and agreed upon, could not possibly reach the Air Line Railway and the Union Station at Magnolia street, without crossing, at a more northerly point, the same street from which it was proposed to eliminate the old grade crossing. (It was not, strictly speaking, the same street, for the proposed crossing was outside of the city; but it was an extension of East Main Street, so called, and became, outside of the city, highway No. 8, under the Jurisdiction of the State Highway Commission.) While the dangers and inconveniences incident to a grade crossing at the latter point may not be as pronounced as at the former location, the policy of the State Highway Commission and of the General Assembly (Acts of 1924, Act No. 634), is strongly tending toward the elimination of grade crossings everywhere practicable.
I think, therefore, that the railroad company's conformity with this well-known policy and earnest hope furnishes *Page 318 strong evidence of the reasonableness of the plan in an age of automobiles and joy riders. Then there is evidence tending to show that the plan conformed to the company's plans at other points along the line; concededly for the benefit of the company. It is immaterial whether the plan was altruistic or economical. Neither motive can justly be said to have been unreasonable, in the total absence of evidence tending to show that it was so.
Having determined, then, to perfect the plan, either for the purpose of eliminating the grade crossing or to conform the grade to the grade of some other points on the belt line, two operations were necessary: To dig a cut and raise the grade of the highway, if the worthy purpose of eliminating the grade crossing was to be adhered to. Of course, it waspossible to dig the cut so deep that the overhead bridge would be upon the grade of the old road, or vice versa, to cross the old road at grade and elevate the overhead bridge high enough for clearance. The one alternative would disarrange the company's entire plan, and the other would put the plaintiff's property at the foot of a mountain. The company adopted the middle course of making both the cut and the grade of the highway contribute to the desired end — all with the approval and formal permission of the only body in the State having jurisdiction of the matter.
While this Court may not say that the plan adopted by the company was reasonable, it can say that, in order for the plaintiff to show that the damage sustained by him was not incidental or consequential as relates to the construction of the railroad, the burden was upon him to show the unreasonableness of it. Of that I do not find a particle of evidence. It seems to me clear, therefore, that the plaintiff is impaled upon the horns of his own deed.
V. I have endeavored to show that the plaintiff has no higher or better rights under a grant of a right of way than he would have had under condemnation proceedings; that his deed and the acceptance of the consideration satisfied *Page 319 all claims that he could have preferred in condemnation proceedings; that he could have recovered in such proceedings compensation for injury to his adjacent land by the raising of the grade of the highway; that his deed therefore has cancelled all such claims; that he has expressly agreed by his deed to renounce all claims for damage to his adjacent land incidental to, or consequential from, the construction of the railroad; that the damage to his land by raising the grade of the highway was incidental to, and consequential from, the construction of the road; and that he is thereby estopped from setting up now such claim for damages.
There remains, therefore, but one possible cause of action open to him, and that is one based upon the negligence of the railroad company in the plan of construction or construction of the railroad, at the point in question. That is to say, where a railroad company has acquired, either by grant or by condemnation, a right of way for the construction of a railroad over the lands of another, all injury to the landowner by the proper construction of the railroad is presumed to have been compensated for in the consideration for the grant or in the compensation allowed in condemnation proceedings. The proper construction of a railroad necessarily results in injury, direct, incidental, and consequential, to the landowner — all of which is presumed to have been taken into consideration in the consideration paid or in the compensation allowed. Hence, under these circumstances, the landowner can recover additional compensation only upon the theory that the construction has been improperly, negligently, performed by the company.
"`The company has the right to construct its road in a suitable and proper manner, whatever may be the injury to the residue of the lands of the same owner; and the latter can maintain no action against the company for any loss or injury which results from building its road in a suitable and proper manner." Judge Freeman, note to 45 Am. St., Rep., *Page 320 910, citing Johnson v. R. Co., 35 N.H. 569; 69 Am. Dec., 560.
In a note to 19 Ann. Cas., 335, it is declared:
"It is a well-settled rule that the acquisition by a railroad company, either by deed or condemnation proceedings, of a right of way through a tract of land, carries with it a license to do all that is necessary for the proper construction of the railroad, and that the company is not liable for injuries to the land arising from such construction, where it exercises reasonable skill and careful judgment in designing and constructing the road. But the company remains liable, nevertheless, for any proximate injury that results to the grantor from the want of skill and care in whatever work it undertakes in order to effect the construction" — citing cases from U.S., Arkansas, Dakota, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Missouri, Nebraska, New Hampshire, North Carolina, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, West Virginia and Canada.
"It will be presumed, however, that a deed to the right of way, or a release of damages, was executed in contemplation of the lawful and proper construction of the road, and the landowner will be permitted to recover for damages occasioned by negligence and lack of skill, such as a failure to provide necessary culverts, the diversion of a stream of water, the negligent removal of earth by which the adjoining soil is deprived of support, or the construction of its embankment in such a way as to unnecessarily flood the grantor's land, or leave dirt and rock upon a part not granted." 2 Elliott R.R. (3d Ed.), § 1157.
"Such a conveyance, however, does not relieve the railroad company from liability for damages which are caused by its negligence in designing, constructing, and maintaining the road, nor for damages resulting from improper encroachments upon land outside the right of way, nor does it relieve the company from such damages as from the terms of the instrument are not to be presumed to have been in *Page 321 contemplation of the parties at the time of the sale or which were expressly reserved." 33 Cyc., 162.
In Watts v. Norfolk Western R. Co., 39 W. Va., 196;19 S.E., 521; 23 L.R.A., 674; 45 Am. St. Rep., 894, the Court said:
"Thus the company had the older and better right to the land conveyed to it for right of way, with all rights and privileges going with such right under the law. It had the right, as owner thereof, to use it as it pleased for the purpose of the construction of its road, provided it used the same in a prudent, reasonable way, considering the nature of its use, and not in an improper, negligent way, inflicting unnecessary injury on others. It had the right, as against Fry [the landowner], to build a wall, to stay and support its roadway, and protect it against the inroads of the stream. Suppose this wall, if built in a proper manner, did entail permanent injury upon Fry by the diversion of the stream's current against his mills, lessening their capacity, or injuring the banks, he can recover no damage on that score."
"If this wall had been built in a negligent and improper way, imposing injury upon the residue of the land, which, in the exercise of due and proper care, could have been avoided, it would be different; for neither a right of way conferred by grant, nor one conferred by condemnation, will give exemption from damages consequential upon the improper or negligent exercise of the right and not from the fair, proper, and reasonable exercise of it, for the reason that neither in making such grant nor in the assessment upon an inquisition are damages contemplated or included that are to be solely attributed to such misuse of the right. * * * There is no evidence that such wall was not in itself a prudent construction in building the railroad, or that it was not properly constructed, or that any injury it worked was avoidable. No damage could be recovered on account of it."Watts v. Norfolk Western R. Co., 39 W. Va., 196;19 S.E., 521; 23 L.R.A., 674; 45 Am. St. Rep., 894. *Page 322
The case of Wallace v. Columbia G.R. Co., 34 S.C. 62;12 S.E., 815, is quite instructive. In that case the plaintiff, who had granted to the railroad company a right of way over a large body of land through which a certain stream flowed, brought an action for damages and injunction against the railroad company, alleging that, in the construction of the railroad through plaintiff's land, the company had erected a dam or obstruction (I assume a "fill") across said stream and maintained it at a great height, obstructing the natural flow, and raising the water eight feet above its ordinary level, in consequence of which the water was backed up on plaintiff's lands and flooded the same, to his damage. The appeal was from an order overruling a demurrer to the complaint upon the general ground.
The Court, in an opinion by Mr. Justice McIver (later Chief Justice), reversing the order appealed from, said:
"Now, stripping these allegations of all unnecessary phraseology can they amount to anything more than an allegation that the defendant has done an act which, by itscharter and right of way granted to it by the plaintiff, it hadthe legal right to do? For the mere fact that injury has resulted to plaintiff from such act does not necessarily affect the legality of the act. We suppose that whenever a railroad company acquires the right of way over the lands of another, either by legal proceedings for condemnation or byagreement with the landowner, some injury results to the owner of the soil over which the road is constructed, but this cannot be regarded as affecting necessarily the legality of the act of the railroad company in constructing its road. The mere fact that the defendant company has, under its charter, after having obtained from the plaintiff the right of way over his lands, constructed and maintained its roadbed over said lands, does not necessarily give the plaintiff any cause of action against the company, even though the construction of the road may have resulted in injury to the *Page 323 plaintiff. To invest the act of the defendant with such acharacter of illegality as would give the plaintiff a cause ofaction, some other fact must be alleged. There must besome allegations of facts showing that the defendant in doingthe act which it was authorized to do, has either want-onlyor through negligence done the act in such a manner asunnecessarily impaired or injured the rights of the plaintiff. It may be that, by the exercise of proper care and skill, the crossing of the streams in question might have been so arranged as to cause but little, if any, obstruction to the natural flow of the water; and that such care and skill was not exercised by the company in constructing the work complained of. But if so, these facts should have been alleged in the complaint, for they would really constitute the plaintiff'scause of action. The wrong, if any, which was done to the plaintiff by the defendant did not consist in constructing its roadbed over the streams flowing through the lands of the plaintiff, for that it had a legal right to do. Nor did it consist necessarily in the fact that the natural flow of the water was obstructed, for that may have been the inevitable and unavoidable consequence of the construction of the railroad; but it may have consisted in the unskillful and negligent manner in which the work was done. Now, in the complaint there is no allegation of any fact tending to show that the road could have been so constructed as to avoid the result complained of by the exercise of proper care and skill on the part of the defendant company, and no allegation tending to show the want of such care and skill."
The attorneys for the plaintiff evidently recognized the correctness of that principle, for in the complaint it is alleged that the acts of the defendant in excavating the cut and raising the grade of the highway were done "willfully, wantonly, with no regard for the necessity of (evidently a misprint for "or") the rights of the plaintiff." *Page 324
In Charleston, C. C.R. Co. v. Leech, 33 S.C. 175;11 S.E., 631; 26 Am. St. Rep., 667, the Court said:
"That, where a thing is granted, the grant implies a right to all the means of enjoying it, so far as the grantor was possessed of those means,"
— and quotes from Sheets v. Seldon, 2 Wall., 177;17 L.Ed., 822:
"The true rule on the subject is this, that everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing by the conveyance."
In Leitzsey v. Power Co., 47 S.C. 464; 25 S.E., 744; 34 L.R.A., 215, the Court, after approving the doctrine of the Wallace case, cites with approval the case of Watts v.R. Co., 39 W. Va., 201; 19 S.E., 523; 23 L.R.A., 674; 45 Am. St. Rep., 894, and quotes from it as follows:
"Neither a right of way conferred by grant nor one conferred by condemnation will give exemption from damages consequential upon the improper or negligent exercise of the rights, and not from the fair, proper, and reasonable exercise of it, for the reason that neither in making such grant nor in the assessment upon an inquisition are damages contemplated or included that are to be solely attributed to such misuse of the right."
In Jones v. Seaboard Air Line R. Co., 67 S.C. 181;45 S.E., 188, it is said:
"The plaintiffs, in giving a deed for a right of way over their lands, must be held to have had in view all damage coming to their property from a reasonably skillful and proper construction of the bridge" — citing the Wallace, Leitszey and Nunnamaker Cases.
In Granger v. Tel. Co., 70 S.C. 528; 50 S.E., 193; 106 Am. St. Rep., 750, it is said: *Page 325
"Mary Granger, as tenant in common, had the right to grant permission to defendant company to construct and maintain its telegraph lines through the property, and especially as this was done with the knowledge and consent of plaintiff, there is no foundation for an action of trespass by reason of such construction, unless defendant had committed a trespass by doing something not properly incident to the exercise of the right granted, or in injuriously exercising the right in a negligent or wanton manner."
In Lampley v. Atlantic Coast Line R.C., 71 S.C. 156;50 S.E., 773, the Court said:
"When the defendant acquired its right of way through said lands, it also acquired the right to obstruct water courses, and was only liable for the obstruction, when the plaintiff alleged and proved negligence in the construction of its road or other works."
In Johnson v. Southern R. Co., 71 S.C. 241;50 S.E., 775; 110 Am. St. Rep., 572, the Court said:
"Where a railroad company, under the statute, has a right to construct its railroad, and has entered with the express or implied permission of the owner, it is not liable as a trespasser to adjacent landowners, under the common law, for the act and result of construction with due care, since the law will not declare that to be a nuisance or trespass which it has authorized. But as the law does not authorize negligence and the condemnation statutes provide no damages for negligence, there is a remedy at common law for damages resulting from a construction done in a negligent manner."
In Touchberry v. Northwestern R. Co., 83 S.C. 315;65 S.E., 341, the Court said:
"There is no difference between the counsel as to the principle of law involved. A right of way acquired by a railroad company either by grant or condemnation for the construction and maintenance of its road carries with it exemption of liability for damages to the grantee (grantor?) *Page 326 or landowner arising from the use of the land for a right of way, not due to negligence. Wallace v. Columbia, etc., R.R.Co., 34 S.C. 62; 12 S.E., 815. Nunnamaker v. WaterPower Co., 47 S.C. 487; 25 S.E., 751 [34 L.R.A., 222; 58 Am. St. Rep., 905]. Jones v. Ry. Co., 67 S.C. 181;45 S.E., 188. * * * The question then is, whether this complaint contains allegations which, if proved, would tend to show that the damage suffered by the plaintiff was due to the negligence of the defendant. More specifically does the complaint contain allegations which if proved would tend to show that by reasonable care and skill the defendant could have fully utilized its right of way without obstructing the water course known as Batson's branch, and so avoided the injury to the plaintiff, due to the flooding of his land."
In Thomas v. Power Co., 105 S.C. 268; 89 S.E., 552, the Court said:
"This does not conflict with the rule that, where a right is granted, it includes, by implication, all that is necessary to enjoy the right, for this the parties will be presumed to have had in contemplation, as, for instance, the grant of a right to construct a railroad through grantor's land (Wallace v. RailroadCo., 34 S.C. 66; 12 S.E., 815), or the right to maintain a dam at a certain height (Reid v. [Courtenay] Mfg.Co., 68 S.C. 466; 47 S.E., 718)."
In Duncan v. Southern R. Co., 121 S.C. 196;113 S.E., 357, the Court quotes with approval the following fromHenry v. Southern R. Co., 93 S.C. 130; 75 S.E., 1020:
"Where one has an easement, such as a right of way, he has the right to [do] all things necessary to the enjoyment thereof, provided there is no negligence," — and from Wallacev. Columbia G.R. Co., 34 S.C. 66; 12 S.E., 815:
"There must be some allegation of facts showing that the defendant, in doing the act which it was authorized to do, had either wantonly or through negligence done the act in such *Page 327 a manner as unnecessarily impaired or injured the rights of plaintiff."
In the Duncan Case, the syllabus is:
"In an action for damages to plaintiffs' land on account of the [alleged] negligent construction of a dam across a stream flowing across plaintiffs' land, evidence as to the improperconstruction of the dam held sufficient to go to the jury." — and in the opinion it is stated:
"The testimony to the effect that the dam was 'high enough before,' and that the water could have been diverted by lowering the pipe instead of raising the dam, in connection with the testimony as to the purpose to be subserved by the structure, the topography of the ground, and the consequential injury claimed, etc., furnished some foundation for a possible inference of negligent construction, upon the theory that the raising of the dam was not reasonably necessary to effectuate the legitimate purposes of the defendant."
It is contended that, by accepting the terms of the order of the state highway commission, authorizing the railroad company to cross and raise the grade of the highway, for the purposes of the underpass, the railroad company has obligated itself to pay the plaintiff for the damage to his abutting property consequent upon the raising of the grade. This does not by any means follow. The order declares:
"That Southern Railway Company hereby assumes all responsibility for any damage that may arise from the change or elevation of the grade of said highway from station," etc.
The right of the plaintiff to recover damages depends upon his showing dehors the order of the commission. If, as I have endeavored to show, he is not entitled to any damages by reason of his own covenant, surely the order of the commission cannot vest him with what he has renounced.
The charge of willfulness, which was the only one contained in the complaint, was specifically withdrawn at the *Page 328 trial in the abandonment of the claim for punitive damages, and, even if the plaintiff could recover upon the ground of negligence in the construction of the railroad, I do not think that there is the slightest evidence in the case as to that.
For these reasons, I think that the motion of the defendants for a directed verdict should have been granted.