South Carolina Steamboat Co. v. Wilmington, Columbia & Augusta Railroad

The opinion of the court was delivered by Mr. Chief Justice McIver. The plaintiff brings this action to recover damages, alleged to have been sustained by it by reason of the obstruction, by the defendant com [333] pany, of the navigation of the Pee Dee River, alleged to be a navigable stream. Inasmuch as the primal and, as we think, controlling question, arises upon a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, it will be necessary for the reporter to embody in his report of the case a copy of the complaint which is set out in the “Case.” 1 The first specification of deficiency in the complaint is thus stated: “The complaint does not allege any special or particular and direct injury to the plaintiff from the alleged obstruction to navigation on the Pee Dee River, for which an action will lie.” The Pee Dee River, being a navigable stream, is a public highway. The Constitution of 1868, which was of force at the time the alleged cause of action in this case arose, and at the time the action was commenced, and at the time it was tried in the Circuit Court, in sec. 40, of art. I., expressly declares: “All navigable waters.shall forever remain public highways;” and the same declaration is repeated in sec. 1 of art. VI. The same declaration is made in the present Constitution, in sec. 28 of art. I., and again in sec. 1 of art. XIV. Tliere can be no doubt that an obstruction of any highway is a public nuisance, which, ordinarily, can only be redressed by indictment. As is said by Harper, J., in delivering the opinion of the court, in the leading case of Carey v. Brooks, 1 Hill, at page 367: “In general, the remedy for a nuisance on a highway is by indictment; and the case put Co. Hit., 56, where that is said to be the proper remedy, is like the present: ‘If a ditch he made over thwart the highway, so that he cannot go.’ In Bacon’s Abridgement, Tit. Nuisance, D., it is said that common nuisances against the public are only punishable by indictment. ‘But if, by such nuisances, the party suffer a particular damage, as if, by stopping up a highway with logs, &c., his horse throws him, by which he is wounded or hurt, an action lies.’ It is added however, ‘but if a highway is stopped that a man is delayed in his journey a little while, and by reason thereof he is dam [334] nified or some important affair neglected, this is not such special damage for which an action on the case will lie; but a particular damage to maintain this action, ought to be direct and not consequential — as, for instance, the loss of his horse or some corporal hurt in falling into a trench on the highway,’ &c., referring to Carth., 194.” And Harper, J., adds: “This seems to be the settled law, founded on the inconvenience of allowing a separate action to every individual who suffers an inconvenience common to many.” These remarks of that distinguished jurist were made in a case where the plaintiff had a raft of timber floating in the water above the obstruction complained of, which he had contracted, under a penalty, to deliver by a certain day in Hamburgh, and the plaintiff, had employed hands to clear out the channel of the stream, at an expense of $125, and had been delayed in delivering the timber about one month by reason of the act of the defendant in obstructing the stream; and yet it was held that the plaintiff could not recover, because the damage complained of was not such as would justify the maintenance of a civil action. That case, Carey v. Brooks, was distinctly recognized and followed in the comparatively recent case of Steamboat Co. v. Railway Co., 30 S. C., 539, where it was said that the true rule on the subject is: “That the injury must be particular — as several of the cases express it, ‘special or peculiar’ — must result directly from the obstruction, and not as a secondary consequence thereof, and must differ in kind, and not merely in extent or degree, from that which the general public sustains.” A good illustration of this exception to the general rule may be found in the case of Crouch v. Railway Company, 21 S. C., 495, where a steamer, the “Silver Star,” in attempting to pass through the draw of a bridge, erected by the railway company across a navigable stream, of insufficient width, struck against the timbers of the bridge and was injured. [334] This being the rule, the next inquiry is, whether there is any allegation in this complaint which brings this case [335] within the exception to the general rule, that the only remedy for a nuisance in obstructing a public highway is by indictment, and not by civil action. We do not think there is any such allegation. There is no allegation of any special ox particular damages peculiar to the plaintiff and differing in kind from that to which all others, in common with the plaintiff, were exposed. All others, in common with the plaintiff, had a legal right, to navigate this river, and any obstruction of that right violated their rights in the same way as the rights of plaintiff are alleged to have been violated. Even granting that the rights of plaintiff are alleged to. have been violated to a greater degree than those of the general public, by reason of interference with the regular schedules which the plaintiff had established, and by reason of ..plaintiff being prevented from complying with its engagements to receive and deliver freight at points on the river above the’obstruction, all other persons who chose to navigate that river were exposed to the very same kind of injury; and there is no allegation in the complaint that the plaintiff was the only person or corporation engaged in navigating that river, even if such an allegation would be of any avail; for the law secured to every person the right to the free navigation of that river whenever he chose to exercise such right. If the fact that the plaintiff, in Carey v. Brooks, was subject to a penalty for not delivering his timber according to his contract, did not bring that case within the exception to the rule, it seems to.us impossible to find anything in the complaint which would bring this case within such exception. 3 Great stress is laid upon the allegations contained in the tenth paragraph of the complaint as to the arrangement there set forth between plaintiff and defendant, whereby, as alleged, the defendant agreed to leave open the draw in the bridge on the day of the regular trips of the boats of the plaintiff company, and the alleged violation of that promise or arrangement by the defendant company. But, in the first place, the present [336] action is not the proper mode of obtaining redress for the breach of a contract, and, in the second place, and what is more to the point, the damages resulting from the breach of such contract would not resitlt directly from the obstruction complained of, and, therefore, would not bring this case within the exception to the general rule. Assuming all the allegations of the complaint to be true, as we must do under the demurrer, we do not think that the plaintiff has stated such facts as are necessary to the maintenance of a civil action for damages sustained by the obstruction of a public highway. It follows, therefore, that the Circuit Judge erred in overruling the demurrer. This being decisive of the case, all of the other questions presented become merely speculative, and hence need not be considered. The judgment of this court is, that the judgment of the Circuit Court overruling the demurrer be reversed.