Opinion
11297
September 17, 1923.
Before MEMMINGER, J., Calhoun. Reversed.
Action by J.A. Banks against Southern Railway, Carolina Division.
From an order overruling a demurrer to the complaint the defendant appeals.
Messrs. Raysor, Moss Lide and P.L. Felder, Jr., for appellant, cite: Surface water is a common enemy: 54 S.C. 245; 97 S.C. 233. Subject to law as to nuisance: 87 S.C. 423; 61 S.C. 548; 39 S.C. 472; 62 S.C. 18; 71 S.C. 241; 117 S.E., 207; 238 U.S. 67. Railroad has same rights as individual to protect itself from surface waters: 80 N.E., 420; 97 N.E., 353; 146 Pac., 171; 139 Pac., 221; 119 Pac., 859.
Messrs. D.L. Murph and J.G. Stabler, for respondent, cite: Rights as to surface waters: 61 S.C. 548; 62 S.C. 18; 54 S.C. 52. Nuisance per se: Joyce Nuisances 20; Wood Nuisances 262; 29 Cyc., 1177; 21 A. E. Enc. L., 683; 13 R.C.L., 186; 11 S.C. 360.
September 17, 1923. The opinion of the Court was delivered by
This is an action for damages caused by the obstruction of the flow of surface water. The defendant demurred to the complaint on the ground that it stated no cause of action. The demurrer was overruled, and the defendant appealed.
I. The recent case of Rivenbark v. Atlantic Coast Line Railroad Co. (S.C.), 117 S.E., 206, shows that the demurrer should have been sustained, and this assignment of error must be sustained.
II. The respondent claims that there was a public nuisance by the overflow of a public highway, with special damage to the plaintiff. There are no allegations to show that the overflowing of the public highway contributed to the damage of the plaintiff. According to the allegations of the complaint, the injury to the plaintiff was caused solely by the obstruction of the flow of surface water, caused by the presence of the railroad embankment, and this, as we have seen, is not actionable.
The judgment is reversed.
MESSRS. JUSTICES WATTS, COTHRAN and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.