Opinion
14385
November 25, 1936.
Before Gaston, J., Pickens, February, 1936. Orders affirmed.
Actions by Robert C. Oates and another and by J.F. Sheriff and others against the City of Easley. From orders sustaining demurrers to the complaints, the plaintiffs appeal.
Order of Judge Gaston follows:
On February — , 1936, I granted an order in this case, on motion of plaintiff's attorneys, holding that the plaintiffs elect to proceed to trial upon the cause of action for nuisance alone and that the case stand for trial on calendar 1 upon the cause of action for nuisance; and further holding that the plaintiffs elect not to prosecute any action arising under the condemnation statute. In other words, my order was granted in keeping with the position of the attorneys for the plaintiffs and in order to carry out the election of the plaintiffs to try the case upon the allegations of nuisance. Thereupon, the defendant demurred to the complaint on the ground that the remedy elected by the plaintiffs and the cause of action stated in the complaint in tort for damages by reason of the alleged nuisance cannot be maintained for the following reasons:
(A) In that the cause of action therein set out is based upon nuisance, disassociated from a "taking" under the Constitution, which is a tort.
(B) That a municipal corporation is not liable in tort except when provided by statute.
(C) That no statute upon which such cause of action can be predicated has been alleged.
Before the demurrer was heard, the plaintiffs served notice of a motion to amend the amended complaint so as to limit the action to a cause of action for nuisance "without prejudice to move condemnation proceedings or action under the condemnation statute (if any), which they may be hereafter advised to maintain." I then heard argument of counsel on the demurrer and on the motion to amend at the same time.
I am satisfied that the recent decision of the Supreme Court, in an exhaustive and learned opinion by Mr. Justice Baker in the case of J.F. Sheriff v. City of Easley, 178 S.C. 504, 183 S.E., 311, filed January 9, 1936, fully disposed of all the issues which are now before me. The opinion of the Supreme Court in that case sustains the verdict in favor of the plaintiff, based upon a complaint which is practically identical with the complaint in the present suit, before the proposed amendments thereto. The Supreme Court in that case holds: (1) That the complaint contains allegations appropriate to two causes of action, one in tort for damages to plaintiff's property, due to negligence in failing to treat and purify the sewerage with modern septic tanks, and in turning into a natural water course traversing plaintiff's land this raw sewerage, and thereby polluting the water of said stream and the air, so as to constitute a great and permanent nuisance; (2) another cause of action for the taking of plaintiff's land without compensation and a denial of the taking and right of compensation; (3) the Supreme Court further holds that no motion was made by the defendant for an election of remedies and the case proceeded to trial and resulted in a verdict in favor of the plaintiff and judgment thereon; (4) the Supreme Court further holds that a municipal corporation cannot be sued in tort in the absence of a statute authorizing such suit; (5) that under the case of Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E., 842, there may be a taking of property in the constitutional sense where a public agency uses land which it has lawfully acquired for public purposes in such a way that neighboring real estate, of a private owner, is actually invaded by additions of water or other material (such as sand, raw sewerage, or other pollution), so as effectually to destroy or impair its usefulness and thereby deprive the plaintiff of his property (either entirely or pro tanto); (6) that Article 1, Section 17, of the Constitution is self-executing and no ancillary legislation is necessary to enforce the right but plaintiff may in the absence of an enabling statute (A.G.L.), sue under the common law which provides a remedy; (7) that an action against a municipal corporation under this article of the Constitution for the taking of private property for public use without compensation may be maintained and that it is not necessary or proper to allege or prove negligence, and that the test of liability is not predicated on negligence but upon taking, and the rights and remedies of one whose property has been taken by a municipal corporation for public use without compensation is based entirely and solely upon the alleged taking; (8) also, that the Court may compel the institution of condemnation proceedings if the right to compensation is conceded or has been determined, but, where the right to compensation has been claimed by plaintiff and denied by the municipality, a suit at common law triable before a jury in the Court of Common Pleas is the proper remedy and a recovery sustained; (9) the Supreme Court further holds that a great number of cases against municipal corporations have been decided by the Court, involving the taking of private property for public use without compensation and that the language used in some of these opinions shows that some of the cases had been brought and tried upon the theory of negligence and that it is near impossible to reconcile all of these decisions, and that this particular issue had not been raised and was not before the Court in such cases. It is clear, therefore, that the Supreme Court has definitely and conclusively decided that a municipal corporation cannot be sued in tort in the absence of a statute authorizing such suit, but must and can be sued under Article 1, Section 17, of the Constitution, which is self-executing for compensation where real property of a landowner upon a natural stream is invaded so as to effectually destroy or impair its usefulness by reason of the use of land lawfully acquired for public purposes by a municipality in such a way as to affect neighboring real estate, although there has been no actual entry and no artificial structure upon such neighboring real estate. I am, therefore, bound by every rule of law and reason to follow the decisions of the Supreme Court above referred to, which is the last enunciation by that high tribunal on this subject. In my opinion the demurrer is well taken, and the plaintiff, having elected to stand upon the cause of action charging the municipality with a tort and with negligence and alleging a nuisance and to stand upon this cause of action alone, cannot maintain the suit, and the complaint must be dismissed.
It seems hardly necessary, therefore, to even discuss or consider the motion to amend the complaint. However, I have no hesitation in saying that the proposed amendments do not and cannot in any way add to plaintiff's right to recover upon the sole issue of an alleged tort and nuisance and, even if the complaint be amended to eliminate all allegations as to the right to recover for the taking of the property and to amplify the allegations of a tortious nuisance, I think the complaint would not only be insufficient and demurrable, but would thereby be rendered absolutely in conflict with the decision of the Supreme Court. The plaintiff seeks further to amend his complaint by alleging that the taking of the property by the defendant by the alleged nuisance is without due process of law, in violation of the provisions of the State and Federal Constitutions (Const. S.C. Art. 1, § 5; Const. U.S. Amend., 14). The mere statement of such a legal conclusion is not adequate to entitle the plaintiff to maintain the action, and especially when such allegation is in the face of, and in conflict with, the latest adjudication of the Supreme Court of this State that the plaintiff has his right of redress and remedy at common law to sue under the provisions of the Constitution of the State for the taking of his property by the pollution of the stream. The plaintiff is entitled to his day in Court and has his remedy to sue for the taking and is not denied due process of law. The aforesaid decision of the Supreme Court supports and sustains a verdict in favor of the landowner rendered by a jury for the taking of his real estate by reason of the very facts set forth in the complaint in the present suit. His right to recover for the taking and the impairment of the value of his real estate by reason of the taking affords him full and complete remedy and is due process of law. I think, therefore, that the plaintiff has no right to amend the complaint after the plaintiff has elected to proceed upon the cause of action in tort for the alleged nuisance, which cannot be maintained against a municipality, in the absence of an enabling statute. Therefore, the motion to amend is refused and the demurrer is sustained. It is, therefore, ordered that the complaint be, and hereby is, dismissed. The matter of due process of law is fully discussed, and many leading cases referred to by the Supreme Court in the case of State v. Brown, 178 S.C. 294, 182 S.E., 838.
Messrs. B.F. Martin and W.C. Mann, for appellants, cite: Condemnation proceedings: 160 S.C. 23; 178 S.C. 513. Right to amend: Sec. 493, Code 1932; 124 S.C. 391; 117 S.E., 807; 83 S.C. 495; 65 S.E., 823; 27 S.C. 94; 2 S.E., 842; 74 S.C. 244; 54 S.E., 375; 81 S.C. 579; 62 S.E., 1113; 92 S.C. 300; 75 S.E., 498; 113 S.C. 310. Immunity of municipal corporation from suit: 160 S.C. 15; 77 S.C. 12; 221 U.S. 636; 55 L.Ed., 890; 35 L.R.A. (N.S.), 243; 77 S.C. 281; 122 S.C. 29; 114 S.E., 857; 128 S.C. 375; 134 S.C. 271; 132 S.E., 591; 117 S.E., 251; 109 S.E., 151. Messrs. J.D. Wyatt and Blythe Bonham, for respondent, cite: Due process: 178 S.C. 294; 96 S.C. 24. Condemnation: 159 S.C. 481; 178 S.C. 515.
November 25, 1936. The opinion of the Court was delivered by
It is agreed by counsel that the decision of the appeal in the Oates case shall decide that in the Sheriff case.
The appeal is from the decree of Judge Gaston sustaining a demurrer to the complaint and denying a motion to amend the complaint. Plaintiffs brought this action against the defendant in a complaint alleging the municipal corporate capacity of defendant and the residence of plaintiffs near the City of Easley; the ownership by plaintiffs of a tract of land on or near Brushy Creek, just outside and near the City of Easley; that the City of Easley for several years collected in sewer pipes, and discharged upon the said lands of plaintiffs, its raw and untreated sewerage; collecting and discharging the same into Brushy Creek, which traverses plaintiffs' said lands; that by this conduct of the defendant the water became foul and contaminated, and the water and air became polluted, and the water and air became unfit for use, and the atmosphere became so contaminated with offensive odors as to render the property unfit for residence purposes and was a cause of annoyance and discomfort, as well as a peril to health; and the salable value of the property was thereby decreased; that this conduct of the defendant constitutes great and permanent nuisances. That plaintiffs have demanded that these practices be discontinued and the nuisance abated, but defendant has refused to accede to these demands, and plaintiffs' right to compensation is denied by the defendant. That defendant's acts, thus complained of, are grossly negligent, and constitute an unlawful use of the stream; that defendant has refused to abate the nuisance and has denied plaintiffs' right to an injunction. That plaintiffs are entitled to recover past damages with an order of abatement and an injunction against the continuance of the nuisance.
Plaintiff's counsel served on defendant's counsel the following notice:
"Please Take Notice: That the plaintiffs in this case do not claim and will not prosecute any action under the condemnation statutes, but if the Court should hold that the allegations are sufficient to set out such a cause of action (although it has never been so intended), the plaintiffs do elect to proceed to trial upon the cause of action for nuisance alone."
The defendant moved to transfer the case to Calendar 2 and for an order of reference. Prior to the hearing, plaintiffs served upon counsel for defendant notice of the motion above set out. Judge Gaston handed down an order by which he held that the plaintiff was "entitled to go to trial upon the cause of action for nuisance," and this issue is a legal one. He refused defendant's motion and ordered "that the case stand for trial upon calendar one upon the cause of action for nuisance, and upon no other cause of action." From this order there was no appeal, hence it became the law of the case.
Thereafter, plaintiffs' counsel gave notice of a motion to amend their complaint in the manner and for the purpose stated in the following affidavit made by Mr. Martin, one of counsel for plaintiffs:
"That he is Attorney for plaintiffs herein; that the basic facts in this case (as shown in the attached Proposed Amended Complaint), give a cause of action for damages for nuisance; that counsel for plaintiffs are in doubt, since the recent opinion of the Supreme Court in the case of Sheriff v. City of Easley, 178 S.C. 504, 183 S.E., 311, as to their remedy, and doubtful of the effect of that case upon the opinion in the case of Conestee Mills v. City of Greenville, 160 S.C. 10, 158 S.E., 113, 75 A.L.R., 519 — and the plaintiffs wish to amend their complaint so as to limit the action to be tried herein to a cause of action for nuisance, without prejudice to the right to maintain condemnation proceedings or action under the condemnation statutes (if any), which they may be hereafter advised to maintain."
The defendant demurred to the complaint on the following grounds:
"(A). In that the cause of action therein set out is based upon nuisance, disassociated from a `taking' under the Constitution, which is a tort.
"(B). That a municipal corporation is not liable in tort except when provided by statute.
"(C). That no statute upon which such cause of action can be predicated has been alleged."
The motion to amend the complaint and the demurrer were heard together; the motion was refused, and the demurrer was sustained in an order by Judge Gaston, from which this appeal comes.
There are six exceptions, but counsel for appellants say in their brief that:
"Two main contentions are made in substance by the exceptions: (1) That the cause of action for damages from tort, negligent installation and negligent maintenance and operation is not demurrable, and (2), there is no such election as would bar plaintiff from further proceedings if plaintiffs should be in error in this respect and be held unable to maintain their common law action of tort."
One of the exceptions discussed by plaintiffs' counsel alleges error for refusing to allow the proposed amendment. Counsel nullifies this exception by saying in their brief:
"In fairness to his Honor, the Judge, however, the error in refusing amendment is rendered substantially harmless because he considered the case as if it had been amended to allege due process of law and passed upon the point as to `due process.'"
We hold it to be settled law in this jurisdiction that an action for damages of the nature of that upon which plaintiff voluntarily elected to go to trial in this case cannot be maintained because there is no statute which authorizes it.
We hold that Section 7297, Code of Laws of S.C. 1932, provides "due process" of law for the redress of injuries of the nature of that complained of by plaintiffs, and such process is exclusive. Plaintiffs voluntarily elected to pursue another process, which this Court holds to be an untenable one.
The Court concurs in the order of Judge Gaston. Let it be reported.
The order appealed from is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BAKER and FISHBURNE concur.