Barksdale v. Railway Co. , 83 S.C. 287 ( 1909 )

July 26, 1909. The opinion of the Court was delivered by This is an action for injunction and to recover damages alleged to have been caused by the operation of a coal chute in the city of Laurens, S.C. on the ground that it is a nuisance.

The jury rendered a verdict in favor of the plaintiff for one thousand dollars, but an injunction was not granted, as the plaintiff announced that the verdict would be accepted as including both past and future damages, and that he would not ask for an injunction.

The defendant appealed upon exceptions, which will be set out in the report of the case.

First Exception: Subdivision "a" of this exception can not be sustained, for the reason that, even conceding the testimony was irrelevant, it has not been made to appear that it was prejudicial to the rights of the appellant; and it is only necessary to refer to the complaint to show that subdivision "b" must be overruled.

Second, Sixth and Seventh Exceptions: Those exceptions assign error on the part of his Honor, the presiding Judge, in refusing to grant a nonsuit; in his charge to the jury, and in refusing to grant the motion for a new trial on the ground that the undisputed testimony showed that the plaintiff had not sustained injury special or peculiar to himself, or differing in kind and degree from that suffered by others in the same neighborhood.

The following authorities sustain the proposition that the remedy for a public nuisance is by indictment, unless the person instituting proceedings, on the civil side of the Court, can show special or peculiar damages, differing in kind from those to which all others in common with him are exposed. Carey v. Brooks, 1 Hill, 365; State v. Rankin,3 S.C. 438; Hellams v. Switzer, 24 S.C. 39; SteamboatCo. v. R.R. Co., 30 S.C. 539, 9 S.E., 650;Steamboat Co. v. R.R. Co., 46 S.C. 327, 24 S.E., 337;Baltzeger v. R.R., 54 S.C. 242, 32 S.E., 358; McMeekin v. Power Co., 80 S.C. 512, 61 S.E., 1020.

In the case of Jones v. R.R., 67 S.C. 181, 45 S.E., 188, the owner of land on a navigable stream brought an action against the railroad company for causing damages to his land by obstructing the flow of freshet waters through the negligent construction of the piers for its bridge.

In delivering the opinion of the Court Mr. Justice Woods used this language: "The right which the plaintiff says the defendant invaded was not the right of navigation, or any other right which he held in common with the public, but the right to the unimpaired use of his land on the banks of the river. The fact that the stream was navigable does not affect this question. Blood v. R.R. Co. (Mass.), 61 Am. Dec., 446. The injury alleged is different in degree and kind from any done to the public, and, therefore, does not fall within the reason of Steamboat Co. v. R.R. Co., 30 S.C. 539,9 S.E., 650, and other like cases. The fact that they arose out of the obstruction of a navigable stream, which constitutes a public nuisance (Drews v. Burton Co., 76 S.C. 362,57 S.E., 176), did not prevent a recovery."

We quote from said case to show that the injury alleged in the complaint was special and peculiar, differing in degree and kind from those to which all others in common with him were exposed.

And as there was testimony tending to sustain the allegations of the complaint, these exceptions must be overruled.

Third Exception: The first subdivision is disposed of by what has already been said.

The second subdivision can not be sustained, as it presents an immaterial question.

Fourth Exception: When that portion of the charge set out in the exception is considered in connection with the entire charge, it will be seen that it is free from error.

Fifth Exception: This exception was not argued by the appellant's attorneys, and, therefore, will not be considered.

Eighth Exception: We do not deem it necessary to cite authority to show that this Court can not consider whether a verdict is excessive, when there is any evidence to support it.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.

July 26, 1909.