City of Columbia v. Melton

September 22, 1908. The opinion of the Court was delivered by This appeal is from an order overruling a demurrer interposed by the plaintiff to the so-called defense set out in the answer of the defendant. On the day of December, 1905, Mrs. Mary McCreary Melton filed a petition in the Court of Common Pleas, in which she alleged that the city of Columbia, by means of pipes, was discharging surface water on her lands, which was emptied into her private ditch or drain; that in times of heavy rains the flow of surface water was unusual; and that this was caused by a change in the construction of drains and the method of drainage in certain portions of the city. Upon hearing this petition, his Honor, Judge Gage, granted an order that a jury be empanelled by the clerk of the Court to assess the compensation to which the plaintiff was entitled for the "taking" of her property. The plaintiff brought this action to enjoin the defendant from proceeding under said condemnation proceedings, and *Page 358 an order was made by the Circuit Judge temporarily restraining the defendant. The defendant filed the following answer: "The defendant above named, answering the complaint in the above entitled cause, says: 1. "Defendant admits paragraphs 1, 2, 3, 4, 5 and 7 of the said complaint. 2. "Answering paragraph 6 of the complaint, this defendant admits that the surface drains along the streets therein referred to were within the past twenty years constructed along the lines of the natural flow of the surface water from said streets, and this defendant admits that the constituted authorities of the said plaintiff have, from time to time, changed the grade of said streets; but this defendant denies each and every other allegation of said paragraph, and, on the contrary, upon information and belief, avers: "That the plaintiff has caused the grade of the said streets and the drains thereon to be changed within the last twenty years, and that by reason of such changes it has shortened, accelerated and concentrated the flow of the surface waters from the area drained by said streets and diverted it from its former more circuitous course, and by the changes made in the drains on the said Elmwood avenue now discharges the said surface waters upon the lands of this defendant in concentrated flow, as in her said petition for assessment of damages alleged, as set forth in paragraph 7 of said complaint. 3. "Defendant denies paragraph 8 of the said complaint, and, on the contrary, avers that she owns and is seized in fee and possessed of the said premises described in paragraph 7 of the said complaint, and that plaintiff has notice of her title thereto, and by the use of proper diligence could have informed himself thereof. 4. "Defendant denies paragraphs 9 and 10 of said complaint, and, on the contrary, avers that the plaintiff has within the last twenty years, and within the last few years, made changes in the grading of the streets and in the system *Page 359 of drainage of the surface water of the area of said city lying west of Bull street, north of Laurel street, east of Assembly street and south of Elmwood avenue; and that since and by reason of such changes in the grading and drainage, and by the piping of such surface water in concentrated flow across the said Elmwood avenue and discharging the same through such pipes upon the lands of this defendant, the said water is discharged with greater force and velocity on the lands of defendant, and by reason thereof has washed away and still continues to wash away and damage the said lands of this defendant; has undermined two of her said tenant houses, rendering them untenable, and has washed out a hole in the lower end of her property, from ten to twelve feet deep and from eighteen to twenty feet wide and from twenty to twenty-five feet long, which accumulates water, and is a standing and increasing injury to defendant's said property, and wherein, since the commencement of this action, a child has fallen and been drowned. 5. "Defendant denies each and every allegation in paragraph 11 of said complaint, and, on the contrary, avers that the damages to and the taking of her property, as alleged in her petition, have been done by the plaintiff without her consent and against her protests; that she has several times petitioned city council, calling their attention to the damage caused to her said property by reason of said system of drainage and asking that the same be repaired, and that by a proper system of drainage further injury be prevented, and to induce the said plaintiff to speedily stop the said damage and prevent its recurring has offered to give the plaintiff a right of way through her said lands, free of costs for the piping of such water through her said lands, but, notwithstanding, the plaintiff has taken no steps to repair or prevent such injury." The plaintiff interposed an oral demurrer to the answer, on the ground that it did not state facts sufficient to constitute a defense to the plaintiff's cause of action, in that — *Page 360 1. "The action herein is one in injunction, praying for a permanent injunction against defendant, seeking to compel plaintiff to condemn, by means of having a jury empaneled to assess the compensation to which plaintiff is entitled for the taking, altering, use and impairment of her said property (described in her petition and in the said complaint), and said answer states no facts under which said right of action for such condemnation proceedings can be maintained against plaintiff under the statutes of the State of South Carolina. 2. "The answer admits that the plaintiff is a municipal corporation, duly created and organized under and by virtue of the laws of the State of South Carolina as alleged in paragraph 1 of the complaint, and admits the allegations contained in paragraphs 2, 3, 4, 5 and 7 of the complaint, and does not state any fact by which, under the statutes of the State of South Carolina, such condemnation proceedings can be maintained against a municipal corporation on account of the alleged `taking, altering, use and impairment of her said property.' 3. "That the statutes of the State of South Carolina provide an adequate remedy in law whereby defendant's rights may be determined in an action for damages on account of said alleged injuries set forth in defendant's petition and answer, which defendant is seeking to avoid under her proceedings herein, and such remedy is exclusive of her rights." The demurrer was overruled and the plaintiff appealed upon the grounds just mentioned. The answer does not purport to set up a defense to the plaintiff's cause of action, but is merely an explanatory or qualified denial of certain facts alleged in the complaint; in other words, it simply sets forth the defendant's view of the facts alleged in the complaint. When the case is called for trial on the merits, and the plaintiff undertakes to show that there are equitable grounds entitling it to the injunction, it will then be afforded an *Page 361 opportunity of having the question determined whether condemnation proceedings on the part of the defendant was the appropriate remedy. It is the judgment of this Court that the appeal be dismissed.