Sutton v. Catawba Power Co.

The opinion of the Court was delivered by Mr. Justice Eraser. This is an action for damages caused by the building of a dam in Catawba River. The plaintiff’s land lies below the dam; while the dam was in process of construction and protected by a cofferdam, the plaintiff brought an action for the damages already suffered and for prospective damages. During the progress of the trial, the plaintiff withdrew any claim for prospective damages and recovered a judgment .for fifteen hundred dollars, for injuries already sustained. This action is for subsequent damages. When the plaintiff brought this action, the defendant, by its answer, claimed that the plaintiff was estopped by her *156 former action, and also that the plaintiff was barred by the statute in that the dam had been erected more than six years before the commencement of the action. The question on Circuit was heard on the question of estoppel alone and on that ground the defense was sustained and judgment entered, for the defendant. Prom this judgment, the plaintiff appealed. The defendant relied upon two general propositions: (a) A judgment is conclusive between the parties, not only as to matters included in the action, but is conclusive also as to matters that might have been included and were not. That the plaintiff had then a right to recover for prospective damages and the judgment is conclusive as to all subsequent damages, whether demanded dr not. (b) The second proposition is that there is only one settlement for property taken by the right o'f eminent domain whether the amount is fixed by deed, condemnation proceedings or by judgment for damages. As general propositions, both are unquestionably sound. Both suits demand damages for injuries to the same tract of land. In the case of Nunnamaker v. Water Power Co., 47 S. C. 486, 34 L. R. A. 222, 25 S. E. 751, it appears that there was a conveyance of a right to overflow fourteen anil two-thirds acres of land, and subsequently the plaintiff brought action for sixty acres more of the same tract of land, subsequently overflowed. In that case it was held that there could be only one assessment of damages and that assessment included all future damages, whether the damages were then in the minds of the parties or not. Many cases were cited by respondent to show that the great weight of authority sustains the Nunnamaker case. Until the rule laid down in the Nunnamaker case is changed, in some lawful way, we are bound by it. It was deemed desirable to apply to the legislature for an act to supplement a charter from the Secretary of State and an act was passed (Statutes of South Carolina, vol. 23, *157 pg. 207) which contained the following proviso: “Provided that said corporation shall be liable for all damages caused by building said dam.” We must presume that the legislature knew the law and that they did not incorporate a meaningless provision. The legislature knew that the corporation would be liable for damage to land, as “land taken,” and it knew further the landowners along the line of the river would be entitled to a just compensation for “land taken,” as soon as any land was taken and the estimate must be made at a time when it would i>e impossible to estimate how much land would be taken and the estimate as to future damages would be a guess. With the law clearly before it, the legislature stipulated that the respondent shall be liable for all damages and the Courts must hold it liable for all damages caused by the building of the dam. If, therefore, the plaintiff has suffered damages for which she has not received compensation, then by the express terms of the statute, the defendant is liable. The general rule of public policy as to the multiplicity of suits, must give way to express legislative enactment; indeed, the legislature has the right to fix public policy. The complaint alleges that the plaintiff has suffered damage caused by the building of the dam. If she has and has ,not been compensated for it, then the defendant is liable under the express terms of the statute, if she has brought her action within the time allowed by law. That is a matter of proof. The judgment appealed from is reversed. Messrs. Chief Justice Gary and Justice Watts concur in the result. Footnotes [1] Footnote. — Res ad judicata: See note in Ann. Cas. 1915a, 583, on award in eminent domain proceedings as a bar to recovery for damages subsequently accruing.