Lucas v. RAWL FAMILY LTD. PARTNERSHIP

598 S.E.2d 712, 359 S.C. 505, 2004 S.C. LEXIS 107
CourtSupreme Court of South Carolina
DecidedMay 3, 2004
Docket25817
StatusPublished
Cited by63 cases

This text of 598 S.E.2d 712 (Lucas v. RAWL FAMILY LTD. PARTNERSHIP) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucas v. RAWL FAMILY LTD. PARTNERSHIP, 598 S.E.2d 712, 359 S.C. 505, 2004 S.C. LEXIS 107 (S.C. 2004).

Opinions

Acting Justice MACAULAY:

We granted certiorari to review the Court of Appeals’ decision in Lucas v. Rawl Family Ltd. Partnership, Op. NO.2003-UP-62 (S.C. Ct.App. filed January 22, 2003). We reverse.

[508]*508FACTS

Petitioner purchased approximately 118 acres of land in Lexington County in 1990, where he grew Coastal Bermuda grass and other crops. He also built a home on the property and used a pond for recreation and fishing.

In 1996, respondents purchased a 146-acre tract north of and adjacent to petitioner’s property. Respondents’ land is higher in elevation, and water naturally flows from respondents’ property to petitioner’s property. Sometime after the purchase, respondents cleared approximately forty acres of land for farming by cutting trees and removing the stumps.

On May 5, 1998, heavy rains caused extensive flooding on petitioner’s property. When petitioner and his son-in-law, Robert Howell, arrived to inspect the property, they saw that surface water, silt, and debris from respondents’ land had washed over the fields and into the pond. The fields were covered in standing water and the pond was flooded, causing extensive damage. The pond dam was eroding and Howell was forced to remove boards holding the dam in place to relieve the pressure and prevent the dam from bursting and flooding the nearby Pelion School. Petitioner presented evidence that the property now floods every time there is a heavy rain and, as noted by the Court of Appeals, the flood-damaged fields do not produce Coastal Bermuda as vigorously as they did prior to respondents’ clearing their land.

Petitioner’s suit against respondents alleged negligence, trespass, and nuisance. Respondents moved for a directed verdict following the presentation of evidence. The trial judge ruled that the case did not properly sound in negligence, and granted the directed verdict motion on the negligence claim. However, the trial judge refused to grant a directed verdict on the trespass and nuisance causes of action.

The jury found in favor of respondents on the trespass cause of action, and found for petitioner on the nuisance cause of action.1 Respondents appealed, arguing, among other [509]*509things, that they were entitled to a directed verdict on the nuisance cause of action.

The Court of Appeals reversed and found that, because the common enemy rule did not apply, the trial judge erred in failing to direct a verdict on the nuisance claim.

ISSUE

Did the Court of Appeals err in holding that the trial judge should have granted the motion for a directed verdict on the nuisance cause of action?

ANALYSIS

Prior to ruling on whether the trial court erred in refusing the directed verdict motion, the Court of Appeals held the common enemy rule did not apply because respondents were merely preparing the land for farming and did not intend to influence the course of surface water. Accordingly, the Court of Appeals held the nuisance exception to the common enemy rule could not apply, and that respondents were entitled to clear their land irrespective of the future effect it would have on surface water. This was error.

South Carolina follows the common enemy rule with respect to the diversion of surface waters naturally flowing across land. Baltzeger v. Carolina Midland Ry. Co., 54 S.C. 242, 247-48, 32 S.E. 358, 360 (1899); Johnson v. Phillips, 315 S.C. 407, 412, 433 S.E.2d 895, 898 (Ct.App.1993), rev'd on other grounds by Smith v. Phillips, 318 S.C. 453, 458 S.E.2d 427 (1995); William T. Toal, Surface Water in South Carolina, 23 S.C. L.Rev. 82, 83 (1971). The rule allows a landowner to treat surface water as a common enemy and dispose of it as the landowner sees fit. Glenn v. School Dist. No. Five of Anderson County, 294 S.C. 530, 533, 366 S.E.2d 47, 49 (Ct.App.1988).

There are, however, two exceptions. First, the common enemy rule is subject to the law of nuisance and an individual may not obstruct or alter the flow of water to create a nuisance per se. Johnson v. Phillips, id. at 414, 433 S.E.2d at 899; Baltzeger v. Carolina Midland Ry. Co., id. at 247, 32 S.E. at 359-60. Second, except by contractual or prescriptive [510]*510right, an upper landowner may not, by means of a ditch, impoundment or other artificial structure, collect surface water on his own land and cast it in a concentrated form upon lower adjoining land. Johnson v. Phillips, id. at 414, 433 S.E.2d at 899.

In his complaint, petitioner alleged respondents began an active and aggressive program of grading, clearing, bulldozing, ditching, land alteration, and removal of trees and vegetation from a substantial portion of their property prior to May 5, 1998. Petitioner alleged those actions resulted in an “alteration and/or diversion in the natural flow of surface water so as to create a nuisance and/or also [respondents] artificially collected surface water and cast it in a concentrated form upon [petitioner’s] land.”

Neither respondents nor petitioner ever argued that the common enemy rule did not apply. Further, petitioner objected to respondents’ proposed jury charge on the common enemy rule because it failed to charge the nuisance and casting exceptions. The trial judge agreed with petitioner, and charged both exceptions.

The Court of Appeals initially noted that both parties had agreed the damage to petitioner’s land was caused by surface water runoff from respondents’ land. The Court of Appeals then stated that the extension of the common law doctrine, known as the common enemy rule, applies only “when a landowner takes direct action addressing surface water to the detriment of an adjoining landowner, such as obstructing or altering its natural flow.” Concluding that the record was devoid of any evidence that the clearing of trees and stumps from respondents’ property was for any purpose other than to prepare the land for farming, the Court of Appeals found there was no evidence respondents intended to influence the natural flow of surface water. Therefore, the Court of Appeals held the common enemy rule, together with its nuisance exception, could not apply.

The Court of Appeals erred for two reasons. First, neither petitioner nor respondent ever argued that the common enemy rule did not apply at trial or on appeal.2 It is well [511]*511settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the trial court. Holy Loch Distributors, Inc. v. Hitchcock, 340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000); Smith v. Phillips, id. at 455, 458 S.E.2d at 429. Therefore, the Court of Appeals erred because the trial judge’s unappealed ruling that the common enemy rule applied was the law of the case. Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159, 160, 177 S.E.2d 544

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Bluebook (online)
598 S.E.2d 712, 359 S.C. 505, 2004 S.C. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucas-v-rawl-family-ltd-partnership-sc-2004.