Steamboat Co. v. Railroad Co.

9 S.E. 650, 30 S.C. 539, 1889 S.C. LEXIS 131

• Court: Supreme Court of South Carolina
• Decided: April 6, 1889
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McIver.

This was an action to recover damages for the obstruction of a navigable stream, and as the only question raised by the appeal is whether sufficient facts are stated in the complaint to constitute a cause of action, it will be necessary to make a condensed statement of the allegations found in the complaint. After stating the corporate character of both plaintiffs and defendants, the allegations are that the plaintiffs are engaged in the transportation of passengers and freight on the rivers and waters of this State by means of steamboats, of which they own a large number; that the Congaree River is a navigable stream, and is now, and has been for some time past, actually navigated by steamboats from a point near the city of Columbia to its junction with the Santee River; that the defendants are engaged in running a railroad, and in the prosecution of that enterprise have erected a bridge across the Congaree River, whereby the navigation of that stream is obstructed; that by reason of such obstruction the plaintiffs have been,. and are, deprived of the free navigation of said stream; that upon demand the defendants have refused to remove said obstruction, or to so alter and arrange the bridge constituting such obstruction, as to permit the free and unobstructed navigation of said stream. And in the eighth paragraph of the complaint the allegations are as follows : “That by reason of said wrongful and unlawful obstruction, the plaintiffs have been prevented from freely navigating the said stream in the usual and ordinary course of their business ; have been unable to freely transport freight and passengers on and along the same, as was their right; have been compelled to remove a portion of the upper works of one of their boats in order for it to pass under the said bridge, and then rebuild on the other side; have been forced to keep and maintain one of such boats permanently above the said bridge, and have sustained loss and other great injury in their business to their damage ten thousand dollars.”

The Circuit Judge held that the facts stated in the complaint were not sufficient to constitute a cause of action, and upon that ground rendered judgment dismissing the complaint. From this judgment the plaintiffs appeal upon the several grounds set out in the record, which need not be repeated here; for, as we shall see, there is really but a single question raiséd by the appeal.

There can be no doubt that the Congaree, being a navigable river, is a public highway, the obstruction of which constitutes a public nuisance, the remedy for which is by indictment, and that remedy, it seems, has already been applied in the case of this obstruction. State v. South Carolina Railway Company, 28 S. C., 28. It is, however, true that an individual who has sustained any particular, special injury, over and above that sustained by the public generally, as the direct result of such obstruction, may also sustain a civil action to recover damages for such injury. In this respect the plaintiffs, though a chartered corporation, stand upon precisely the same footing as any private individual. Their rights are no greater and no less than those of an individual, and are to be tested by the same principles.

While it seems to be very generally, if not universally, conceded that in order to sustain such an action as this, the plaintiff must allege and prove some special, particular, or peculiar injury beyond that sustained by the public generally, yet it is not to be denied that there is a considerable conflict in the authorities elsewhere as to what will constitute such special, particular, or peculiar injury. Without going here into any detailed examination of the cases in England and other States, many of which we have examined, it seems to us that the true rule to be deduced from them is, that the injury must be particular — as several of the cases express it, “special or peculiar” — must result directly from the obstruction, and not as a secondary consequence thereof, and must differ in kind, and not merely in degree or extent, from that which the general public sustains. This rule is fully supported by what few authorities we have in this State upon the subject.

The case of Carey v. Brooks (1 Hill 365), upon which the Circuit Judge rested his conclusion, seems to be the leading case in this State. There, as here, the action was brought by a private individual to recover damages for a public nuisance in obstructing the navigation of a navigable stream, under the allegation that the plaintiff had incurred expense in clearing out the channel of the stream, and had suffered loss in transporting his lum-her to market under a special contract to deliver it within a specified time. But the court, per Harper, J., held that the action cóuld not he sustained because the damage complained of was not such as ivould justify such an action, quoting the rule as laid down in Bacon’s Abridgment, that “a particular damage to maintain this action ought to be direct, and not consequential,” adding that “this seems to be the settled law founded on the inconvenience of allowing a separate action to every individual who suffers an inconvenience common to many.”

This case, so far from having been modified or shaken by any subsequent case, as contended by the distinguished counsel for appellants, has, we think, been expressly recognized, and must be regarded as furnishing the settled rule in this State. The first case to which our attention has been called as modifying Carey v. Brooks, is McLauchlin v. Railroad Company (5 Rich., 583), but that case, so far from modifying, expressly recognizes and affirms it. Wardlaw, J., in delivering the opinion of the eourt, says (italics being ours): “His complaint is of an unauthorized obstruction of public streets, and to sustain such a complaint a particular direct damage must be shown,” citing, amongst other authorities, the case of Carey v. Brooks; and we are unable to find a single expression in McLauchlin’s case which shows the least dissatisfaction with the rule as laid down in Carey v. Brooks. It will be observed in McLauchlin’s case that he claimed that his property lying adjacent to the obstruction complained of had been injured thereby, and if he had succeeded in showing this, he might possibly have recovered upon the ground that this was a special and peculiar damage to his adjacent property, differing in kind from that sustained by the general public and resulting directly from the obstruction complained of, and not a secondary consequence thereof. It seems to us that Judge Wardlaw, in those portions of his opinion specially relied upon by counsel for appellants, was speaking of this aspect of the case, and the language used by him cannot be regarded as any modification whatever of the case of Carey v. Brooks, which he had just cited, as laying down the rule upon which such an action as this rests.

The next case relied on by appellants is Windham v. Rhame, 11 Rich., 283. In that case the only question before the court, and the only one considered was whether vindictive damages could be recovered in an action on the case for special damages incurred by plaintiff by the obstruction of a public highway. Although the defendant did give notice that he would renew his motion for a non-suit on the ground that the damage proved in the case was not such as would sustain a private action, yet he abandoned that motion in the Court of Appeals, and hence that court had no occasion to consider, and did not consider, the question, and so far as we can discover there is not a -word in the opinion which indicates the slightest dissatisfaction with the rule as laid down in Carey v. Brooks.

The last case relied on is Crouch v. Railway Company (21 S. C., 495), but that case is so wholly different from the present that it is difficult to understand how any analogy can be drawn between them. In that case the action was to recover damages for certain injuries sustained by the plaintiff’s steamboat, called the “Silver Star,” in passing through the draw of a bridge erected by defendant across a navigable stream. No such question as is here presented either did, or could have arisen, in that case; for there the injury was the direct result of the obstruction, the plaintiff’s boat having struck against the bridge in passing through the draw, which was alleged to be insufficient. That case, therefore, fell clearly within the rule. The injury complained of was special and peculiar to the plaintiff, different in kind from that sustained by the public generally, and was the direct result of the obstruction, and not a mere secondary consequence thereof. Indeed, .the only controversy really made in that case was whether the owner and officers of the Silver Star had been guilty of contributory negligence in attempting to pass through the draw of the bridge. That case was like the case of a traveller who, in attempting to pass an obstruction in a public highway, is thrown from his horse, or has his vehicle upset and broken or his horses injured, in which case a private action may unquestionably be maintained to recover damages for such injuries, for they are different in kind from those suffered by the general public, and are the direct result of the obstruction.

It is clear, therefore, that the only question in this case is whether the complaint contains any allegation of such special or particular injury to the plaintiffs resulting directly from the obstruction of the Congaree River, as, under the rule we have stated, is necessary to enable the plaintiffs to maintain such an action as this is. We agree with the Circuit Judge that there is no such allegation to be found in the complaint. The wrong of which it complains is a wrong done to the public generally in stopping the navigation of the river, and the plaintiffs have no more right to demand redress for that wrong than any other individual. They do not allege that any particular injury has been done to them by the defendants, different in kind from that done to the public generally. The utmost that can be said is, that they allege, in the eighth paragraph of their complaint, that with a view to obviate the injury which they, in common with the public, suffer from this public wrong of the defendants, they have voluntarily incurred certain expenses, and for this they claim damages from the defendants. But this is not the direct result of the obstruction, and at most is only a secondary consequence thereof, and cannot, therefore, be regarded as a sufficient basis for this action. If the fact that Carey had incurred expenses in attempting to remove the obstruction caused by the act of Brooks, was held insufficient to enable him to maintain his action, we do not see how the fact that plaintiffs have incurred expenses in refitting their boats can entitle them to recover in this action.

The point raised in the argument as to the effect of the act of 1852,¹ is not properly before us, as no such point was presented to, or considered by, the Circuit Judge. The only question which he was called upon to decide was whether the facts stated in the complaint were sufficient to constitute a cause of action, and his judgment upon that question is all that we are entitled to review. We may add, however, that even were the point properly before us, we do not think it would avail the plaintiffs. The case, as made by the complaint, is not such a ease as would entitle the plaintiffs to the special remedy provided by the act; and certainly there is nothing in the act which would give these plaintiffs any rights superior to those of any private individual in bringing such an action as that now under consideration.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

1 12 Statutes at Large, page 177, which reads as follows :

“Whereas the public interest is concerned iii the ready and safe passage over the Congaree River, as well as in the navigation of the same, and a secure passage over the said river by bridge interferes with the uninterrupted navigation thereof by steamboats with chimneys of great height, unless means bo taken to reduce the height of such chimneys by hinges, to bo used as occasion may require ; therefore

“I. Be it enacted by the senate and house of representatives, now met and sitting in general assembly, and by the authority of the same, that it shall and may be lawful for the South Carolina Railroad Company to construct a bridge over the Congaree River where it is intersected by the railroad, although the said bridge be not of sufficient elevation to permit steamboats to pass without lowering their smoke-stacks: Provided, that the said bridge be at least forty-two feet above the bed of the river : And provided, also, that the said company shall satisfy and pay all the expense which any steamboat may incur by reason of any alterations which may be rendered necessary by this act, and by the necessity of lowering the smoke-stack of such steamer, by the use of hinges or by any other manual contrivance : Provided, also, that the said railroad company shall transport guano and agricultural plaster of paris at a rate not exceeding twelve and a half cents per hundred pounds to Camden, Columbia, and Hamburg, and at the same rate to all intermediate stations.”