February 19, 1930. The opinion of the Court was delivered by This is an action by J.R. Peden against Furman University and Greenville Baseball Association to restrain and enjoin them from using Graham field for baseball or other athletic or sport purposes, and against Furman University for five thousand dollars damages alleged to have been caused as a result of Furman University leasing grounds known as Graham field, adjoining plaintiff's property, for the purpose of playing baseball games thereon, and it is alleged that, because Graham field is not large enough, and is known by the defendants not to be large enough, for a baseball park, balls are frequently batted by the ball players over the fence onto the premises of the plaintiff, where boys scramble to recover them, which, if presented at the gate, entitle the holder to free admission to the games; that other trespasses are committed, his fences torn down, his yards and gardens trampled by employees of Greenville Baseball Association, students of the university, and persons there to see the games, and made conditions otherwise so unbearable that plaintiff could not reside in his own residence with any degree of peace and comfort, and he was by reason thereof compelled to move, and on account of which he could not rent the houses; that, when plaintiff was absent during the games, persons trespassed upon his land, climbed upon his houses, tore the shingles from the roof, broke out the window panes, and did other damage to his property; that the baseball games drew to the neighborhood of his property large crowds of people, numerous motorcars that blocked the traffic and created disagreeable noises, and caused smoke and fumes of gas, and generally disturbed the quiet of his premises; that the use of the field in the manner above set forth by permission of the university and its lease of the same for said purpose is unlawful, and constitutes a nuisance, on account of which plaintiff suffered irreparable injury and damage, and alleges he is entitled to a perpetual injunction restraining the use of said park for athletic purposes. *Page 12
Furman University alleges that it purchased Graham field for use by its students as an athletic field, but, being without sufficient funds to properly develop it for an athletic field, leased it to the Municipal Athletic Corporation for a period of years ending September 15, 1934, upon the agreement that the said association expend not less than twenty-two thousand, five hundred dollars in grading and improving the premises and erecting thereon a grandstand, clubhouses, and fences, and keep the same in good condition during said period, and providing that said association might lease the premises to the Greenville Baseball Club for league baseball during the baseball season and spring practice, the university reserving unto itself the right to use the premises for its students when the same were not being used for league baseball purposes, and providing that at the end of said term the premises were to be returned to the university with all the improvements thereon constructed by the parties aforesaid; in pursuance of which agreement a lease of said premises to the Greenville Baseball Association was had; that the university did not lay out the baseball park or have any control over its operation, and by reason thereof the university is not liable; that the game of baseball is not a nuisance per se, and that the manner in which the games were conducted were not in the nature of a nuisance, but were conducted under police protection and discipline, and free from rowdyism and other disorders, and denies that the park is conducted by either of the defendants in such a way as to constitute a nuisance, and that Furman University is an eleemosynary institution, and for this reason cannot be held liable in this action.
At the conclusion of the testimony, the presiding Judge directed a verdict in favor of the defendants, and thereafter refused a motion for a new trial. From the judgment duly entered thereon, plaintiff has appealed to this Court upon seven exceptions. *Page 13
The presiding Judge directed a verdict in favor of Furman University on the ground that it is an eleemosynary institution, and as such, cannot be held liable in this action, and stated as his reason therefor that "it fell within the doctrine laid down in the Vermillion case,104 S.C. 197, 88 S.E., 649, 650." In our opinion, theVermillion case is not analogous. In the Vermillion case the defendant gave a musical entertainment in its auditorium. While the entertainment was in progress, the balcony fell on plaintiff's intestate, causing his death. The cause of action was based upon the negligent construction of the balcony. In rendering the opinion of the Court in this case, Judge Hydrick said:
"The exemption of public charities from liability in actions for damages for tort rests not upon the relation of the injured person to the charity, but upon grounds of public policy, which forbids the crippling or destruction of charities which are established for the benefit of the whole public to compensate one or more individual members of the public for injuries inflicted by the negligence of the corporation itself, or of its superior officers or agents, or of its servants or employees. The principle is that, in organized society, the rights of the individual must, in some instances, be subordinated to the public good. * * *
"This rule does not put such charities above the law, for their conduct is subject to the supervision of the court of equity; nor does it deny an injured person a remedy for his wrong. It is merely an exception to the rule of respondeatsuperior, which is itself based on reasons of public policy." (Italics added.)
Appellant's action against Furman University is not based upon negligence or upon the principle of respondeat superior. He asks no damages against the university on account of the negligence of any of its agents or servants or of the university itself. He alleges that he has been damaged as a result of Furman University leasing ground known as Graham *Page 14 field for the purpose of playing baseball games therein, when the university knew that Graham field was not large enough for a baseball park, and by reason thereof balls are frequently batted by the ball players over the fence onto his premises, and other trespasses and damages done to his property, as alleged in his complaint, and as testified to by his witnesses, so that conditions were made so unbearable that he could not reside in his own residence with any degree of peace and comfort, and was thereby compelled to move, and on account of which he has been unable to rent his property, and that the said use of the field, as alleged and testified to, was by permission of the university and in accordance with its lease, and constitutes a nuisance, and amounts to a taking of his property without just compensation first being had, contrary to the Constitution of South Carolina.
The decision in the Vermillion case is based upon the principle of public policy in "that, in organized society, the rights of the individual must, in some instances, be subordinated to the public good," but declares that "this rule does not put such charities above the law, for their conduct is subject to the supervision of the court of equity; nor does it deny an injured person a remedy for his wrong. It ismerely an exception to the rule of respondeat superior, which is itself based on reasons of public policy." (Italics added.)
So, in the case of Lindler v. Hospital, 98 S.C. 25,81 S.E., 512, the Court, upon grounds of public policy, refused to extend the doctrine of respondeat superior to a case brought against a charitable institution for the negligence of an employee.
There is no doctrine of public policy that would permit the university to commit the acts of trespass, as alleged and testified to in this case, or authorize it to so damage and use plaintiff's property in such a manner as amounts to a taking of his property. On the contrary, our Courts have decided *Page 15 that not even a County or the State has the right to take the property of one of its citizens in violation of the constitutional provisions prohibiting the taking of property without just compensation first being made.
In Faust v. Richland County, 117 S.C. 251,109 S.E., 151, the Court held that:
"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."
If the throwing of surface water onto the lands of a person, thereby depriving him of the use thereof, amounts to a taking of his property, then certainly the frequent batting of baseballs onto the premises and dwelling house of the plaintiff, the trampling of his garden and his yards, and the other trespasses alleged and testified to by him, to such an extent as to render his premises uninhabitable, and depriving him of the full use and enjoyment of the same, and impairing the value thereof, is a taking of property in contemplation of the constitutional provisions.
If another eleemosynary institution had owned ground adjoining the university campus, and had built thereon a public baseball park, and leased it to the Greenville Baseball Association for the purpose of playing league ball thereon, knowing that the grounds were insufficient, and that balls would be batted by the players into the windows of the classrooms of Furman University, could it be said that Furman University would not have a cause of action against such eleemosynary corporation for maintaining a nuisance and for destroying and using its property without just compensation first being had? In the same way, and upon similar principles of justice and legal liability, the plaintiff should have a cause of action against the university, and the university should not be allowed to claim immunity on the ground that it is an eleemosynary corporation. *Page 16
In our opinion, an eleemosynary institution cannot use its property in such a way as to prevent others from enjoying the use of theirs, and, if it uses the property in such a manner as to become a nuisance, it makes itself liable for damages.
"`Nuisance' is * * * `Anything that unlawfully worketh hurt, inconvenience or damage. * * * That class of wrongs that arises from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal. * * * A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. It produces damage to but one or two persons, and cannot be said to be public. * * * If a thing is calculated to interfere with the comfortable enjoyment of a man's house, it is a nuisance. * * * Every citizen holds his property subject to the implied obligation that he will use it in such a way as not to prevent others from enjoying the use of their property. * * *'" Deason v. Southern Railway, 142 S.C. 334,140 S.E., 575, 577; 3 Bouv. Law Dict. (1914), 2379.
The evidence in the cause tended to show an unreasonable use by Furman University of its property to the hurt and annoyance of the property of the plaintiff; that it interfered with the comfort and enjoyment of the plaintiff's house, drove him from it, and prevented him from enjoying the use of his property.
"A matter may be a nuisance although it injuriously affects only one household." Emory v. Hazard Powder Co.,22 S.C. 476, 53 Am. Rep., 730.
"A nuisance is anything which works hurt, inconvenience, or damage * * * which essentially interferes with the enjoyment of life or property." State v. Columbia WaterWorks, 82 S.C. 181, 63 S.E., 884, 889, 22 L.R.A. (N.S.), 435, 129 Am. St. Rep., 876, 17 Ann. Cas., 343.
In the case of Frost v. Berkeley County, 42 S.C. 409,20 S.E., 280, 283, 26 L.R.A., 693, 46 Am. St. Rep., 736, *Page 17 Chief Justice McIver, writing the opinion of the Court, said:
"We think, if one uses his own land for the prosecution of some business from which injury to his neighbor would either necessarily or probably ensue, he is liable if such injury does result, even though he may have used reasonable care in the prosecution of such business. This doctrine is supported, not only by reason, but by the weight of authority, as is shown by the cases cited by appellant's counsel. The rule is well stated in a note in 5 Am. Eng. Enc. Law, at page 3, in these words: `In general, if a voluntary act, lawful in itself, may naturally result in the injury of another, or the violation of his legal rights, the actor must, at his peril, see to it that such injury or such violation does not follow, or he must expect to respond in damages therefor; and this is true regardless of the motive or the degree of care with which the act is performed.'
"In the case of Susquehanna Fertilizer Co. v. Malone,73 Md., 268, 20 A., 900 (9 L.R.A., 737, 25 Am. St. Rep., 595) — a very much like the one under consideration — it was held that: `No principle is better settled than that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie; and this, too, without regard to the locality where such business is carried on; and this, too, although the business may be a lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business'; citing AttorneyGeneral v. Colney Hatch Lunatic Asylum, 4 Ch. App., 147;Pinckney v. Ewens, 4 L.T. (N.S.), 741; Stockport WaterWorks v. Potter, 7 Hurl. N., 160; Rylands v. Fletcher, L.R. 3 Eng. Ir. App., 330. * * * `If a person brings or accumulates on his land anything which, if it should escape, *Page 18 may cause damage to his neighbor, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.' In Bamfordv. Turnley, supra, the jury were instructed that if they thought the spot was convenient and proper, and that the use by the defendant of his property was, under the circumstances, a reasonable use of his own land, he would be entitled to a verdict; but upon appeal these instructions were held to be erroneous, and that it was no answer, in an action for a nuisance creating actual annoyance and discomfort in the enjoyment of neighboring property, that the injury resulted from a reasonable use of the property.
"In Cahill v. Eastman, 18 Minn., 324 (Gil., 292) [10 Am. Rep., 184], it was held that a person who uses his property in such a manner as necessarily tends to injure the property of another, is liable to that other for any injury which may result from such use, without regard to considerations of care and skill therein. In that case the Court quotes the following passage from Bl. Comm., bk. 3, c. 13: `If one erects a smelting house for lead (or, for the same reason, a fertilizer factory, in which sulphuric acid is generated) so near the land of another that the vapor and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nuisance. And, by consequence, it follows that if one does any other act in itself lawful, which yet, being done in that place, necessarily tends to the damage of another's property, it is a nuisance, for it is incumbent upon him to find some other place to do that act, where it will be less offensive.'"
But the university contends that it did not lay out the baseball park or have any control over its operation, and for this reason it is not liable. Paragraph 6 of the lease of Furman University to the Municipal Athletic Corporation is as follows: *Page 19 "The lessee covenants not to make any alterations, additionsor improvements to the demised premises, withoutwritten consent of the lessor, and to permit the lessor or its agents, at all reasonable times, to enter the demised premises or any portion thereof, for the purpose of examining same or making such repairs, alterations or improvements as the lessor may see fit voluntarily to make."
Under this paragraph of the lease, the university had complete control of the situation. It could have caused the fences to have been built higher, and caused the baseball grounds, grandstands, and club houses to have been built in accordance with their wishes, and possibly in such a manner as not to injure the plaintiff. There is testimony on the part of the plaintiff that the university knew that the ball ground would be too small without the addition of Peden's property, and, while negotiating for the purchase of Peden's land, he was informed that the building of a baseball park would destroy the value of his land. The university contends that it is not responsible for injury to plaintiff's property by reason of the use made of the premises by the Greenville Baseball Association, and cites 2 Wood on Landlord and Tenant (2d Ed.), p. 1283, where the rule is stated as follows:
"In order to charge the landlord the nuisance must necessarilyresult from the ordinary use of the premises by thetenant, or for the purpose for which they were let; and where the ill results flow from the improper or negligent use of the premises by the tenant, or, in other words, where the use of the premises may or may not become a nuisance, according as the tenant exercised reasonable care, or used the premises negligently, the tenant alone is chargeable for the damages arising therefrom."
In 16 R.C.L., 1076:
"It is usually held that the landlord is liable to third persons standing in the position of strangers for injuries received *Page 20 wherever he demises the premises, * * * where at the time of the demise, the premises were so constructed or in such defective condition that a reasonable, ordinary and expected use of them by the tenant would create a nuisance working injury to third persons; where the premises are let to be used for a purpose which may reasonably be expected to create a nuisance."
In 16 R.C.L., 1081, it is held:
"It is not always necessary in order that the landlord may be held liable for injuries resulting from a nuisance on the leased premises that the cause of the injury be in and of itself a nuisance at the time of the lease. Leases are made with a view to the use of the premises leased, and if the injury to the person or property of a stranger is the result of the reasonable, ordinary and contemplated manner of use of the premises, the lessor will be responsible therefor, although unused, and as they stood at the time of the demise, the premises were not, of themselves, a nuisance."
The lease provides that the lessee may rent said athletic field to the Greenville Baseball Association or any baseball team representing the City of Greenville in league baseball, for and during the playing season of each year, etc. There is testimony tending to show that, when the lease was made, the university knew the ball park would be too small, and that balls would be knocked onto plaintiff's premises, and that the nuisance would necessarily result "from the ordinary use of the premises by the tenant for the purpose for which they were let."
After the Court had directed a verdict in favor of Furman University, plaintiff asked leave to amend his complaint to conform to the facts proven and to ask damages against Greenville Baseball Association. This motion was overruled, and a verdict directed in favor of Greenville Baseball Association.
The presiding Judge should have allowed the plaintiff to amend his complaint in accordance with his motion. *Page 21
There was testimony in the case tending to prove the allegations of the complaint, and the issues should have been submitted to the jury. It was error of law for the circuit Judge to have directed a verdict for the defendants.
The judgment of the circuit Court is reversed, and the case remanded for a new trial, with leave to the plaintiff to move before that Court for an order to amend his complaint, if he be so advised.
MESSRS. JUSTICES BLEASE and STABLER concur.
MR. JUSTICE COTHRAN did not participate.