January 31, 1921. The opinion of the Court was delivered by This is an action for damages alleged to have been sustained by the plaintiff through the wrongful acts of the defendant, on account of the undermining of his house and lot by flood waters of the Savannah River, which broke through the railroad embankment of the defendant, ranging in height from 2 to 6 feet, and about fifty feet in front of his property. The jury rendered a verdict in favor of the defendant, and the plaintiff appealed upon exceptions which will be reported, except the first and second, which were abandoned.
His Honor, the presiding Judge, charged the jury: "That where a railroad corporation wrongfully and negligently constructs its railroad track so that it obstructs the waters of *Page 406 a stream in a manner that it damages or endangers the property of the adjoining landowners, such negligent or wrongful construction, under the law, would be a nuisance, and the corporation constructing such nuisance would be liable to the adjoining property owner for the damages to his property flowing as a direct and proximate result thereof. But if the original creator of such nuisance should sell its roadbed containing such nuisance and convey it to another railroad corporation, and such purchaser thereof continues to use it, and maintains it in the same condition, or without material alterations or changes therein, then the purchaser thereof would not be liable for any damages caused thereby until after it is notified of the nuisance and a demand is made upon it to remove or abate the nuisance."
The ruling of his Honor, the presiding Judge, is fully sustained by the following decisions: Privett v. Railway, 54 S.C. 98,32 S.E. 75; DeLaney v. Railway, 58 S.C. 357,36 S.E. 699, 79 Am. St. Rep. 843; Jones v. Railway, 67 S.C. 181,45 S.E. 188. The exception assigning error in said ruling, as well as other exceptions raising the same question in a different form, are, therefore, overruled.
We proceed to the consideration of the third exception.
The plaintiff's attorney, in discussing this exception concludes his argument with these words: "The defendant had taken the position that it had to have notice and demand for removal, and on this issue it was competent, as well as to show wilfulness."
The cases which we have cited are to the effect that the notice must be given by a party whose rights are or may be injuriously affected, if the nuisance is not removed, or rendered safe so as to accomplish the purposes of its creation. The engineer of the defendant had no such interest. In the *Page 407 second place, the ruling was not prejudicial, as the plaintiff could not recover punitive damages; the jury having rendered a verdict for the defendant, thus showing that he was not entitled to actual damages.
Before punitive damages can be recovered, the plaintiff must show that he has sustained actual damages.
The last question for consideration is whether there was error on the part of his Honor, the presiding Judge, in ruling that the defendant was not liable, under the agreement between the defendant and its grantor, the Augusta-Aiken Railway Company, for the negligent construction by the latter of the roadbed in question.
The defendant agreed to pay off all the existing debts, obligations, and liabilities of its grantor. It cannot be successfully contended that the alleged cause of action herein was an existing liability of the defendant's grantor.
Affirmed.
MR. JUSTICE GAGE did not participate.