Edgefield County v. Georgia-Carolina Power Co. , 104 S.C. 311 ( 1916 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] April 27, 1916. The opinion of the Court was delivered by This case comes here upon an appeal from an order of the Circuit Court made upon demurrer to the complaint. It arises out of the construction in 1913 and 1914, pursuant to legislative authority, by the defendant, of a concrete dam 30 feet high across Savannah River below the mouth of Stevens Creek, which flows through Edgefield county and empties itself into Savannah River. 26 Stats. 398. The plaintiff has stated its case by the complaint, which needs to be reported, and, of course, the allegations of fact therein made are for the present deemed to be true. The demurrer will also be reported. It was overruled by the Circuit Court.

There are six exceptions. The first and second charge errors of commission, and the other five charge errors of omission. The appellant has argued these under five heads, and the argument makes these issues:

First. Does the complaint recite acts and circumstances from which wilfulness and negligence are inferable?

Second. Do the allegations of the complaint bring the case within section 1947 of the Code of Laws?

Third. Did the act of the General Assembly of this State not only expressly authorize the defendant to erect the dam, but impliedly authorize it to flood the highway, and ought the complaint to have alleged that the dam was not erected in accordance with the requirement of the said acts, or the defendant was negligent in the construction of the dam?

Fourth. Did the General Assembly by the act authorizing the construction of the dam thereby take from the plaintiff the right to complain at the performance of the work?

Fifth. Is the alleged wrong of the defendant only a public nuisance, the remedy for which is not a civil action for damages or for injunction, but a criminal action by indictment?

The first and last are minor issues. The others are of more serious import. We shall essay to compass all five of the questions, but not by number, and not in their order.

1. The allegation of the complaint that the power company "wilfully and unlawfully raised the waters of the creek so as to destroy the public crossing and ferry, * * * so as to obstruct the highway and approaches leading thereto," states no cause of action. No act is alleged and no circumstance is stated which, if true, would warrant an inference that the thing done was negligent or was wilful. The allegation as made is only one of law, and a demurrer does not admit the truth of such an allegation.Wallace v. Railroad, 34 S.C. 67, 12 S.E. 815. We are, therefore, of the opinion that the quoted allegation, found near the close of paragraph 9, did not state a cause of action against the defendant.

2. The plaintiff rests its action in part upon the statute (section 1947 of the Code of Laws), but it does not rely solely upon the statute; for it claims that, "independent of the statute, a county has the right to maintain an action to recover damages for injuries to its bridges, highways, or other property." It has been held, and we so hold, that the two wrongs may be combined in one action. Smith v. Gilreath, 69 S.C. 353, 48 S.E. 262. We think plainly that the statute was not enacted to meet a case like the instant case; and we gather that from a consideration of all its language. The central idea of the statute is to require the removal of obstructions in a highway under penalties. The words which indicate this are "remove" and "remain." If that be so, and it clearly is, we think it will be contended by the plaintiff that the General Assembly, which authorized the construction of a great and permanent structure, intended that it should not remain, but should be removed, upon notice by "any person passing along such * * * highway." It is true that after directing a removal of the obstruction, and after contemplating a remaining of the obstruction, the act prescribes first a penalty, and then a liability to suit by the county for all damages arising to any highway. But such liability to the county depends upon the duty of the defendant to have removed the obstruction on notice to do so. We think, therefore, that any right of action which the plaintiff may have does not spring out of the statute.

3. And in the logical order we pass now over to that question last hereinbefore stated, and that in short is this: Is indictment the only remedy for alleged wrong? The answer to that question is the same as that just made in the construction of the statute. Indictment has for its prime object the abatement of a nuisance, which is the removal of the obstruction. It is true the Court upon conviction may impose a moderate fine; but removal of the obstruction is the thing aimed at; the law's object upon indictment is not so much to punish the wrongdoer as to open the way. But the defendant does not admit — it strenuously denies — that, if it should be found guilty of remotely obstructing a highway by the dam, a Court could direct it to remove the dam. That would be to order the removal of that which the General Assembly had directed to be erected. Upon such supposed conviction the Court could not even order the dam to be lowered. The General Assembly did not limit its height. There is no allegation in the instant case that the dam might have been so carefully constructed as to avoid the consequent overflow of the highway. Indictment, therefore, would not lie, for it would be a fruitless remedy; and what is said about the remedy of indictment is relevant to the remedy of injunction. A Court could not enjoin the erection or the maintenance of a structure like that in the instant case upon any ground suggested in the record.

In answer to the suggestion that for a public wrong a single individual may not sue unless the damage to him has been peculiar, this action is not by one of the citizens living along Stevens Creek. In that event it might have been answered that he had suffered no peculiar injury unlike that his uncomplaining neighbor had suffered, and that there was no special remedy for him when he had suffered a common wrong. The action here is by the community — that is, the county — which in its artificial and corporate capacity represents for some purposes the public. And while, perhaps, the State might have sued, yet the county has sued, and the interesting question whether it has a cause of action will be considered under the head of the other stated issues.

4. And we come now directly upon that issue, which is: Has the county stated a cause of action? The before recited issues, in one form and another, raise that question, but under several and somewhat differing aspects. The aspects are these: The defendant asserts that the highway is but an easement in the State, that the State might with impunity have discontinued the highway, and that the State has only done by necessary implication that which it might have done directly and expressly. The defendant further insists in that same connection that, although the statutes of the State (section 1947) make it unlawful to obstruct a highway, yet, when another statute has by implication permitted the defendant to do that thing, then the former statute does not operate. The defendant further asserts that the county had no such ownership of the highway and ferry as to render their serious impairment by the defendant a wrong to the plaintiff, and that the constitutional prohibition to take private property without making compensation therefor has no application to the taking of public property. The initial and dependent issue of law is the right of Edgefield county to maintain the action at all, and that for the reason it had no right, and therefore has suffered no wrong. While this issue is not made by the letter of the exceptions, it is fairly within the fifth exception, and it was elaborately argued by the appellant. The subject matter in issue is a highway where it is crossed by a nonnavigable stream, and a flatboat across the stream, to transport the public free of cost, and operated by a cable.

A highway is termed an incorporeal hereditament; it is an easement; when created it inheres in the land, and is not dependent upon the owner of the land; it is a substantial right, the taking of which must be compensated; it rests in deed, in prescription or in dedication. 2 Blackstone 444; 2 Wn. Real Prop. 301; Elliott on Roads and Streets, 309. The last named authority declares that at the common law public roads were under the charge of local authority, like towns, shires, counties, etc.

In this State prior to 1868 the legislature, directly by act, took jurisdiction over public buildings, roads, bridges, and ferries. When a public road was to be opened or a public road to be closed, it was done directly by the terms of an act, or by commissioners named by the act, or generally constituted by statute. See Ex parte Withers, 5 S.C.L. (3 Brev.) 83; State v. Com'rs, 46 S.C.L. (12 Rich.) 300. Indeed, this ferry over Stevens Creek was authorized by act of the legislature. 13 Stats. 467. But by the Constitution of 1868 jurisdiction over roads, highways, ferries, and bridges was vested in a board of county commissioners. Art. No. IV, sec. 19. And in 1868 the legislature passed an act defining the powers and duties of the board of county commissioners. Rev. Stats. 1873, p. 146. Thereby that board was empowered to open new roads, to work roads and to levy taxes therefor. The Constitution of 1895 by implication abolished the board of county commissioners, and by implication left the government of the counties in the hands of the legislature. The legislature since 1895 has committed to varying bodies, sometimes called commissioners, and sometimes called supervisors, the same full jurisdiction over roads, bridges, and ferries which was exercised by the old county commissioners under the Constitution of 1868. Code of Laws, tit. 10, c. 28, sec. 1927, et seq.

We are, therefore, of the opinion that, under the Constitution and laws of the State, the State has absolute control over the government of counties, and, therefore, over the highways. But we are of the opinion that the State has by statute delegated to the counties jurisdiction over roads, bridges, and ferries. The General Assembly has empowered the counties to open new highways, and to close old highways; it has conferred upon the counties control and supervision of highways and ferries; it has also empowered the counties to establish free ferries; it has devolved upon counties the duty to maintain the public roads at its own expense under penalties, and to levy taxes upon the citizens of the county for the construction and maintenance of roads. Code of Laws, supra.

In the instant case the county of Edgefield owned and operated by cable a free flatboat to transport the public across Stevens Creek at the place in question; and the flooding of the creek has rendered the operation of the boat difficult, and has rendered the necessity to employ two ferrymen where one was needed before. The appellant admits that Edgefield county may own a courthouse, a jail, a poorhouse, mules, and road machinery, but yields to it no authority over the roads it pays for and works. Granting, then, for it is true, that final authority over and title to that public easement called the highway rests in the State, yet under the Constitution and statutes we are of the opinion that the county may maintain the action it has pleaded. See Elliott on Roads and Streets, p. 321; 37 Cyc., p. 252.

The county is but another manifestation of the State; it is an arm of the State; and this State has committed to it the full jurisdiction of highways. It is obvious the legislature might have expressly authorized this action by the county; and it is just so manifest the legislature has done that by necessary implication. The State indicts for obstruction of the highway; writs are required to run in the name of the State. Const., art. V, sec. 31. The right to pass and repass the highway is in all the people of the State; and where the right is the remedy must proceed for the offense. Abbeville v. Leopard, 61 S.C. 104,39 S.E. 248.

5. We come now to the postulate that the act of the General Assembly by which the dam was authorized to be constructed was a necessary authorization to flood the highway.

It is true the State, independent and superseding the will and action of Edgefield county, might have closed up the road and ferry. And that carries with it the corollary that the act of the legislature in the instant case might have expressly provided that in the construction of the dam the company might flood without wrong those highways within the zone of high water. And it is true that, if the company should thereby flood the private property of the citizen, then under constitutional protection it would need to make compensation to those persons who suffered a particular injury from the nuisance. McDaniel v. Power Co.,95 S.C. 269, 78 S.E. 980.

But public property, we think, does not fall within the protection of the Constitution. Leitzsey v. Power Co.,47 S.C. 479; 25 S.E. 744, 34 L.R.A. 215; Elliott on Roads and Streets, 484. That which the State has set apart for one public purpose the State may dedicate to another and higher public purpose. The supreme good of the public — salus republica suprema lex — is the ideal to be accomplished, and it is in the keeping of the State. So that in the instant case it would have been obviously within the power of the legislature to have expressly subjected the highway in Edgefield to be overflowed by the waters of Stevens Creek and Savannah River, and Edgefield could not complain about it.

But such intent will not be lightly inferred; the intent to do so must be a necessary implication of the words of the grant and the purpose of the grant. Folger, J., in Matterof City of Buffalo, 68 N.Y. 167, reported in 9 Am. St. Rep. 143, note; Elliott on Roads and Streets, 484. It is true large public interests center about the construction of a task like that involved in damming a great river. The task is a public one, although conceived by private initiation and undertaken by individual means; for its accomplishment was dependent upon the consent of the State. But highways are of great import also. They are the arteries of the landed State. To block all of them would not only paralyze industry, but it would strangle liberty. The simple right of them must not yield to the demands of a highly developed and complicated civilization, unless the State, the guardian of both, has plainly so declared it.

Looking, then, to the statute which conferred upon the defendant its right and powers (supra), section 3 provides:

"Said corporation shall have the right and power to condemn any and all lands, property, water, riparian or other rights, or easement, or any interest therein necessary to the construction, erection, operation and maintenance of its power plants, pole lines and dams. Such property, lands, water, riparian or other rights, easements and privileges, shall be condemned in the same manner and the method of compensation to be the same as in the case of condemnation by railroads, canal and turnpike companies, provided by the laws of this State."

The right therein granted to condemn easements is general. Had the statute declared by express words that the power company might condemn this very highway, then the right to do so would certainly rest in the power company. The pleadings, however, have not challenged the right of the power company to condemn, and it is, therefore, not necessary now to decide if under the statute it has that power. The plaintiff has sued for damages, and the power company has shown no right to flood the highway, and is, therefore, liable to the plaintiff for the damages which have followed thereupon.

The judgment of the Circuit Court is affirmed, and the defendant may answer within 20 days after the filing of the remittitur.

MR. CHIEF JUSTICE GARY did not participate in the hearing or decision of this case.