Slater v. Price

The opinion of the Court was delivered by Mr.‘ Justice AVatts. This was an action for damages by plaintiffs against the defendants. The complaint alleges that plaintiffs and defendants were owners of adjoining tracts of land, arid that plaintiffs were damaged to the extent alleged in the complaint, to wit, $2,000, by reason of the defendants obstructing and shutting up a ditch, which drained the surface water from the tract of land owned by the plaintiffs. Both of the tracts of land involved were originally owned by one Reynolds, and both the plaintiffs and defendants acquired their titles through transfers subsequent to the ownership by Reynolds of the entire tract. The cause was tried by Judge AVilson and a jury, and resulted in a verdict for the plaintiffs for damages in the sum of one hundred dollars, and to reopen the ditch. A motion for a new trial was made on various grounds, which was overruled, and after entry of judgment defendants appealed and asked reversal of the same. The exceptions should be set out in the report of the case. *254 1 Exception 1 complains of error on the part of his Honor in charging the jury as to the question of surface water. We see no error in the Judge’s charge, taken as a whole, in reference to the matters complained of. There was some evidence tending to show that the obstruction of the ditch caused the water to be collected and thrown back on the lands of the plaintiffs, and that this obstruction, erected by the defendants, cast the water on the plaintiff’s land and prevented it from going in the ditch erected and maintained for the purpose of carrying it off. The evidence shows that both tracts of land at one time were one tract, and owned by one Reynolds, and the ditch was put there to drain the land. C. E. Reynolds testifies that the land was owned by his father, that he had known the land all of his life. That at one time he owned the Price land, and •that then his brother owned it. That the ditch had been there practically in the same place all of his life. It is true he does not say how old he is, but testifies he left the land in 1886, and that the ditch was there then. This action was commenced October 24, 1910, and the evidence shows that the ditch has been there over 23 years. There was evidence to go to the jury that this ditch had been there during the ownership of Reynolds of the entire tract, which land is now owned by the plaintiffs and defendants, that it was put there to drain the lands, and from that time it has been used for that purpose, and any interference by obstruction, constructed by the defendant to prevent the waters flowing in it from plaintiff’s lands and casting it back on plaintiffs’ land so as to injuriously affect it, was to be determined by the jury, and we fail to see how what his Honor told them in reference to surface water was prejudicial to the defendants, and it was not in conflict with the well considered cases of Lawton v. South Bound R. R. Co., 61 S. C. 548, 39 S. E. 752, and Brandenburg v. Zeigler, 62 S. C. 21, 39 S. E. 790. The defendants made no request of the Court *255 to more fully charge along this line. This exception is overruled. 3 Exceptions 2 and 3 complain of error on the part of his Elonor on the question of 36 years’ use of the ditch in question would create an easement in the plaintiffs, even if such use was merely permissive. We think the appellants misapprehended the Judge’s charge. Take it as a whole it is free from the errors complained of. There was evidence that the ditch had been in use over 30 years, without objection or hindrance from any one, and when plaintiffs established that by evidence then the burden was shifted to the defendants to rebut that, or show such use was permissive merely. The Judge charged in substance the law as laid down in the case of State v. Kendall, 54 S. C. 192, 32 S. E. 300, and State v. Tyler, 54 S. C. 295, 32 S. E. 422. He substantially charged the law applicable to the case, and if appellants desired a more extended charge it was their duty to embody their proposition in the form of a request. These exceptions are overruled. 3 Exception 4 alleges error on the part of his Honor in charging the jury that if it was necessary to drain the lands of the plaintiffs the use of the ditch in question passed with the lands. This exception must be overruled as the trial Judge in each case is allowed to charge the jury as to the law applicable to the points in issue made by the pleadings and evidence admitted in the case. There was no contention that the plaintiffs were attempting to drain their lands by trespassing upon, or taking defendants’ land, but their contention was that Reynolds, the original owner of the entire tract of land, put the ditch there to drain the entire tract, and subsequently the tract was divided into two tracts with the ditch there for the use of both tracts, and it was necessary to use this ditch to drain the lands of plaintiffs, and plaintiffs and defendants both acquired the property subject to the burdens and benefits *256 that existed on it at the time they acquired it by purchase. The testimony showed the ditch had been there when Reynolds originally owned the land, that it has been used continuously for more than 20 years to carry the water off of plaintiffs’ land, that this use had been uninterrupted, and his Honor committed no error in charging the jury as he did, taking his charge as a whole. Reynolds, the original owner of the entire tract, having put the ditch there to drain it, and later the place having been divided into two tracts, with the ditch there, and being used for more than 20 years for the purpose of draining the lands, the defendants could not stop the ditch, if plaintiffs had acquired an easement thereon, and it was necessary for plaintiffs to use it for that purpose, or suffer injury, and his Honor was correct in charging the jury on the law applicable to such a state of facts and leaving it to them to determine. Lampson v. Milks, 21 N. Y. 505; Curtiss v. Agrault, 47 N. Y. 73. Taking the charge as a whole we fail to see how the defendants were prejudiced thereby, as complained of by this exception, and this exception is overruled. 4 The 5th exception alleges error in not granting a new trial as to the defendant, Irving Price, on the ground that there was no evidence to support the verdict as to him. The evidence shows both of the defendants owned the land, and that W. W. Price was in possession for both, his Honor submitted to the jury the question both of compensatory and punitive damages. The verdict was: “We find for the plaintiff damages in the sum of one hundred dollars and reopen the ditch.” There is no evidence in the case that would warrant a verdict against Irving Price for punitive damages. There is sufficient evidence to base a verdict against him that the ditch be reopened, and unless plaintiffs, within ten days after remittitur of this Court is sent down to Circuit Court, remits on record as to Irving Price the one hundred dollars as damages, so that the verdict will then be to reopen the ditch, and one *257 hundred dollars damages against W. W. Price, then a new trial shall be granted as to Irving Price. Exception 6 alleges error in not granting a new trial as there was no evidence whatsoever to support the verdict as to any damages, either actual or punitive. A perusal of the evidence shows that there was ample testimony to support the verdict, and this exception is overruled. Judgment affirmed as to W. W. Price. New trial nisi as to Irving Price. The Chiee Justice concurs on the ground that when the charge is considered as a zvhole it is free from error.