Mr. Associate Justice Stukes
delivered, the Opinion of the Court, with Mr. Chief Justice Baker filing a Dissenting Opinion concurred in by Circuit Judge G. Duncan Bellinger, Acting Associate Justice. The Opinion of the Court follows:
I find myself in disagreement with the conclusion of the Chief Justice in this case and I most respectfully record the reasons moving me to dissent.
In his view that there was no error in the refusal of the trial Court to direct a verdict or set aside that found by the jury, I fully concur. The pleadings and evidence made issues of fact which were properly triable only by jury. Appellant impliedly, at least, admits liability if it impounded the floodwaters in unnatural quantity and then so
discharged them to respondent’s damage, and confined its trial defense to a denial of that fact; but the fact was concluded against it by the verdict,- which is not within the proper sphere of this Court to disturb. Thus the Court is in agreement that this factual phase of the appeal should be overruled. But, as before indicated, I differ as to the proposed disposition of the appeal concerning the instructions to the jury-
Under the opinion of the Chief Justice, in the light of the charge to the jury in this case, an act of negligence, by the standard of conduct governing a private citizen, superimposed upon a taking of property by a governmental unit in the constitutional sense, excuses liability for the latter. I cannot think the law is so illogical.
But passing that by and considering the critical point of difference, I think it well to reproduce the charge which was, in essential parts,.as follows:
“It is undisputed in this case that Greenwood County was entitled to construct and. operate a hydro-electric plant, commonly known as Buzzard Roost; that it was licensed to do so' by the Federal Authorities, and ■ that permission was granted them (it) to do so by the State of South Carolina. As a result of that, Mr. Foreman and Gentlemen of the J ury, Greenwood County had a right to erect a dam'across this river and impound the waters of Saluda River. Now the plaintiff contends' that through the operation and maintenance of said hydro-electric plant, as a proximate result thereof, that his personal property and his real estate have been damaged. The defendant denies that, the defendant alleges that any damages resulting to the plaintiff in this case by reason of flood waters or unusual amount of water were due to natural causes and not to any act of its. So, Mr. Foreman and Gentlemen, that makes an issue of fact for you gentlemen to decide; namely, whether the plaintiff in this case has sustained any damages as a result of flood con
ditions or unusual amount of water on his land; and, if so, was that damage brought about about by natural conditions, would it have occurred independently of the existence of said hydro-electric plant or dam? Or, was such damage brought about by reason of the maintenance of its (this) dam?
“Now, if the plaintiff was damaged by reason of the natural flow and ordinary flow of this river being impeded, if his damage was brought about by water being discharged on his land in a larger volume, or at an accelerated pace, and that such was caused by the opening of the flood gates, then under those circumstances that would amount to a taking of plaintiff’s property within the purview of the statutory provision that provides that private property shall not be taken for public use without just compensation. On the contrary, if the jury finds that the condition which the plaintiff complains of, if that condition would have existed independently of whether that dam was there or not, then you couldn’t hold this defendant liable for something that was brought about or resulted through no fault of its own.
“If the defendant in this case discharged impounded water through its floodgates in no greater volume or at no more accelerated pace than would ordinarily have been brought about by the natural flow of such river, then of course the defendant would not be responsible. Any damage to the plaintiff under those circumstances would be due to natural causes. On the other hand, the plaintiff (defendant) wouldn’t be permitted to discharge water through its floodgates in a greater volume or at a more accelerated pace, as I say, than would have resulted naturally from the ordinary flow of that stream.
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(Here occurred the paragraph quoted in the opinion of the Chief Justice relating to negligence, as to which there was no other reference in the charge.)
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“Now, the defendant in order to protect its property and maintain its dam, under the law, has a perfect right to discharge increased water in its dam brought about by freshet or flood, and to open its floodgates to discharge such increased waters. And if it discharges them in no substantially different manner than would have flowed ordinarily in such stream, of course, it couldn’t'be responsible for any damage that results. On the other hand, as I told you, while it has a right to discharge such water and open up the floodgates and reduce the water in the dam, it can’t do so in a manner that would result in water being discharged on the land of a riparian owner below the dam, can’t discharge it in an increased volume or accelerated pace, that is to say, more than would have been so under the ordinary natural flow of the river.
“I think that is all I find necessary to tell you. The facts are solely within your province and for your determination. Don’t consider anything that I have said to you as any intimation of mine as to the facts.
“The Court (Addressing counsel) : Anything else for the plaintiff ?
“Mr. Harley: No, sir.
“The Court (Addressing counsel) : Anything for the defendant?
“Mr. Griffith: No, sir.”
The record presents about as clear and unmistakable inadvertent misstatement of the issues by the Court as could occur. The case was very simple on the pleadings and evidence; it involved only alleged liability for the taking of plaintiff’s property for a public purpose without compensation (Const. 1895, Art. 1, sec. 17;
Chick Springs Water Co. v. State Highway Dept.,
159 S. C., 481, 157 S. E., 842;
Milhous v. State Highway Dept.,
194 S. C., 33, 8 S. E. (2d), 852, 128 A. L. R., 1186) by the accumulation of flood waters and subsequent discharge of them at an accelerated
rate or in larger volume than would have naturally resulted without the maintenance of the dam and floodgates. Negligence was not alleged in the complaint. Of it appellant’s able counsel say in their brief: “A reading of the complaint will show that no act of negligence was charged against the appellant, and the sole basis of respondent’s complaint is that appellant flooded his land, on the date in question, without notice, without having acquired a right to flood it.”
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Mr. Associate Justice Stukes
delivered, the Opinion of the Court, with Mr. Chief Justice Baker filing a Dissenting Opinion concurred in by Circuit Judge G. Duncan Bellinger, Acting Associate Justice. The Opinion of the Court follows:
I find myself in disagreement with the conclusion of the Chief Justice in this case and I most respectfully record the reasons moving me to dissent.
In his view that there was no error in the refusal of the trial Court to direct a verdict or set aside that found by the jury, I fully concur. The pleadings and evidence made issues of fact which were properly triable only by jury. Appellant impliedly, at least, admits liability if it impounded the floodwaters in unnatural quantity and then so
discharged them to respondent’s damage, and confined its trial defense to a denial of that fact; but the fact was concluded against it by the verdict,- which is not within the proper sphere of this Court to disturb. Thus the Court is in agreement that this factual phase of the appeal should be overruled. But, as before indicated, I differ as to the proposed disposition of the appeal concerning the instructions to the jury-
Under the opinion of the Chief Justice, in the light of the charge to the jury in this case, an act of negligence, by the standard of conduct governing a private citizen, superimposed upon a taking of property by a governmental unit in the constitutional sense, excuses liability for the latter. I cannot think the law is so illogical.
But passing that by and considering the critical point of difference, I think it well to reproduce the charge which was, in essential parts,.as follows:
“It is undisputed in this case that Greenwood County was entitled to construct and. operate a hydro-electric plant, commonly known as Buzzard Roost; that it was licensed to do so' by the Federal Authorities, and ■ that permission was granted them (it) to do so by the State of South Carolina. As a result of that, Mr. Foreman and Gentlemen of the J ury, Greenwood County had a right to erect a dam'across this river and impound the waters of Saluda River. Now the plaintiff contends' that through the operation and maintenance of said hydro-electric plant, as a proximate result thereof, that his personal property and his real estate have been damaged. The defendant denies that, the defendant alleges that any damages resulting to the plaintiff in this case by reason of flood waters or unusual amount of water were due to natural causes and not to any act of its. So, Mr. Foreman and Gentlemen, that makes an issue of fact for you gentlemen to decide; namely, whether the plaintiff in this case has sustained any damages as a result of flood con
ditions or unusual amount of water on his land; and, if so, was that damage brought about about by natural conditions, would it have occurred independently of the existence of said hydro-electric plant or dam? Or, was such damage brought about by reason of the maintenance of its (this) dam?
“Now, if the plaintiff was damaged by reason of the natural flow and ordinary flow of this river being impeded, if his damage was brought about by water being discharged on his land in a larger volume, or at an accelerated pace, and that such was caused by the opening of the flood gates, then under those circumstances that would amount to a taking of plaintiff’s property within the purview of the statutory provision that provides that private property shall not be taken for public use without just compensation. On the contrary, if the jury finds that the condition which the plaintiff complains of, if that condition would have existed independently of whether that dam was there or not, then you couldn’t hold this defendant liable for something that was brought about or resulted through no fault of its own.
“If the defendant in this case discharged impounded water through its floodgates in no greater volume or at no more accelerated pace than would ordinarily have been brought about by the natural flow of such river, then of course the defendant would not be responsible. Any damage to the plaintiff under those circumstances would be due to natural causes. On the other hand, the plaintiff (defendant) wouldn’t be permitted to discharge water through its floodgates in a greater volume or at a more accelerated pace, as I say, than would have resulted naturally from the ordinary flow of that stream.
* * * *
(Here occurred the paragraph quoted in the opinion of the Chief Justice relating to negligence, as to which there was no other reference in the charge.)
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*
*
“Now, the defendant in order to protect its property and maintain its dam, under the law, has a perfect right to discharge increased water in its dam brought about by freshet or flood, and to open its floodgates to discharge such increased waters. And if it discharges them in no substantially different manner than would have flowed ordinarily in such stream, of course, it couldn’t'be responsible for any damage that results. On the other hand, as I told you, while it has a right to discharge such water and open up the floodgates and reduce the water in the dam, it can’t do so in a manner that would result in water being discharged on the land of a riparian owner below the dam, can’t discharge it in an increased volume or accelerated pace, that is to say, more than would have been so under the ordinary natural flow of the river.
“I think that is all I find necessary to tell you. The facts are solely within your province and for your determination. Don’t consider anything that I have said to you as any intimation of mine as to the facts.
“The Court (Addressing counsel) : Anything else for the plaintiff ?
“Mr. Harley: No, sir.
“The Court (Addressing counsel) : Anything for the defendant?
“Mr. Griffith: No, sir.”
The record presents about as clear and unmistakable inadvertent misstatement of the issues by the Court as could occur. The case was very simple on the pleadings and evidence; it involved only alleged liability for the taking of plaintiff’s property for a public purpose without compensation (Const. 1895, Art. 1, sec. 17;
Chick Springs Water Co. v. State Highway Dept.,
159 S. C., 481, 157 S. E., 842;
Milhous v. State Highway Dept.,
194 S. C., 33, 8 S. E. (2d), 852, 128 A. L. R., 1186) by the accumulation of flood waters and subsequent discharge of them at an accelerated
rate or in larger volume than would have naturally resulted without the maintenance of the dam and floodgates. Negligence was not alleged in the complaint. Of it appellant’s able counsel say in their brief: “A reading of the complaint will show that no act of negligence was charged against the appellant, and the sole basis of respondent’s complaint is that appellant flooded his land, on the date in question, without notice, without having acquired a right to flood it.”
Many cases from this Court may be cited to the point that if a charge is not responsive to the issues, it should be objected to, if it is desired to have it reviewed upon appeal. To cite all of the authorities would needlessly encumber the record. They may be fpund by referring to 2 S. E., Dig. 813-816, Appeal and Error, Key 215, and pocket part. It appears from the multitude of such decisions that the rule is as well settled as any applicable to appeals. It was not, I think, infringed upon at all in the case relied upon by the Chief Justice, to wit,
Coleman v. Lurey,
199 S. C., 442, 20 S. E. (2d), 65, 66, which involved an erroneous charge upon the law applicable to an issue. From the opinion by the learned acting Justice Lide the following is quoted: “It is well established by numerous decisions of this Court that any error on the part of the trial judge in the statement of the issues will be deemed waived if counsel fail to bring it to his attention. Among the many cases so holding we cite the following:
Gowns v. Watts Mill,
135 S. C., 163, 133 S. E., 550;
Hiller v. Bank of Columbia,
96 S. C., 74, 79 S. E., 899;
Park v. Laurens Cotton Mills,
75 S. C., 560, 56 S. E., 234.”
Repeating, the rule adverted to, which applies and should control here, may, I think, be simply stated as follows: If a trial Court in instructing the jury erroneously refers to a ground of liability or defense which is not comprehended by the pleadings and evidence, it is a misstatement of the issues and entails a duty upon counsel to
request correction at the time and not remain silent and take chances upon a favorable verdict, and thereafter appeal upon that ground in the event of an unfavorable one. Such-course is unfair to adversary and court and runs counter to the interest of the State in an early end of litigation.
A further consideration which, in my view, necessitates affirmance of this judgment is that pointed out in
Sheriff v. Easley,
178 S. C., 504, 183 S. E., 311, 316, in which the author of the opinion was the present able Chief 'Justice, then an Associate Justice, of this Court, who said:
“It was undoubtedly error to hold, at the time of passing upon the motion for a nonsuit, and in charging the jury that the case was predicated upon negligence, and in making the test of liability the negligent establishment, maintenance, and operation of the septic tanks. But the error, instead of being harmful to appellant, was beneficial to it, and placed an unnecessary burden upon respondent to prove negligence.
“We hold that in an action against a municipal corporation under article 1, § 17, of the Constitution, for the taking of private property for public use without. compensation, it is not necessary to allege or offer proof that such municipal corporation has negligently established, maintained, or operated that which has caused damages amounting to a taking, and that if there has been a taking without compensation, and a denial of the right of compensation, it is immaterial if the taking was due to the negligence of such municipal corporation; otherwise there could easily be cases of a taking without compensation, and the one whose property has been taken would be without remedy or redress if such municipal corporation was not guilty of negligence and denied the right of compensation.”
I shall not take time and space to review at any length that interesting case; suffice it to say that I see no material
difference between it and this. There the city partly inundated plaintiff’s land and stream with sewage and (among other things) sickened his cows; here the county flooded plaintiff’s land with water and drowned his cattle.
The cited law of the
Sheriff case
was repeated with approval and applied in
Baynham v. State Highway Dept.,
181 S. C., 435, 187 S. E., 528, in which the opinion was by the then Chief Justice Stabler.
In view of the foregoing authorities, and those cited in them, it is clear to me that defendant’s appeal upon the point on which it is proposed to sustain it, is untenable because (1) it was counsels’ duty to call the attention of the Court to the patently inadvertent slip in his charge, and (2) the definition of negligence, which was a correct one, was harmless to the cause of the appellant.
In further summation, consideration of the whole of the instructions to the jury makes it quite plain, I think, that the jury must have understood that it could find a verdict against the defendant only if the floodwaters were impounded and thereafter released in. greater amount and speed than if there had been no dam; and I think it may be fairly said that defendant’s position was such that liability upon it followed, if that fact were determined against it, which it impliedly was by the verdict. . ,
For the reasons stated, the exceptions are overruled and the judgment affirmed.
Mr. Associate Justice Fishburne concurs.