Douglas v. First Provident Corp.

Brailsford, Justice: The genesis of this controversy was the laying out by First Provident Corporation of a residential development near the City of Florence and the construction of some forty residences therein without first providing for adequate drainage. This appeal is a sequel to Clemson University against First Provident Corporation, et al., consolidated with William B. Douglas against the same defendants, 260 S. C. 640, 197 S. E. (2d) 914 (1973), wherein, after defendants had trespassed upon the contiguous lands of the two plaintiffs by clearing a right-of-way for the construction of a large canal, they were enjoined from doing so, but their prescriptive rights in old ditches traversing plaintiffs’ lands were recognized. Upon remand and after a hearing, the court passed an order which purported to authorize defendants to restore one of the ditches to its former depth and width, specifically, to straddle the ditch with a backhoe, clearing the banks as needed, and to excavate to a depth not exceeding 3.3 feet below the existing bottom of the ditch at any point, but without specific limitation on the width of the excavation. — 202 — The plaintiff Douglas has appealed, basically upon the ground that the decree imposes burdens on his land which far exceed the prescriptive rights of the defendant First Provident. Clemson University has not appealed. We shall omit a general restatement of facts which may be adequately understood by reading the opinion on the first appeal, and endeavor to state those necessary to this appeal as briefly as may be. An ancient, hand-dug ditch traverses the subdivision from the east, thence in a westerly direction through property of Pinemont Realty, the Pee Dee Experimental Station of Clemson University, William B. Douglas and others, to its outfall in Beaverdam Creek. This is referred to in the record as the east-west ditch or route. It has furnished the only significant drainage available to the area in question for as long as any witness recalls, at least since the witness Harrell went to work for the experimental station in 1934. About 2000 feet west of the subdivision, another ancient ditch branches off from the east-west ditch northward along the boundary between Douglas and Clemson lands, thence through lands of Andrews and lands of others to McCall Branch. Before the commencement of this action First Provident improved a canal along the route of this ditch across the property of Andrews, north of the Douglas property, to the Douglas line, where the extension of the canal was stopped by injunction. The order appealed from applies to the north-south ditch. The order reserves any determination of the developer’s rights in the east-west ditch. Within the lands of Douglas and the experimental station, a ridge athwart the north-south ditch forms a natural watershed. Water falling north of this ridge drains north into McCall Branch, that falling south of it drains south into the east-west ditch, thence to Beaverdam Creek. The existing bottom of the north-south ditch is not on grade through this ridge. Water entering the ditch follows the natural watershed, north or south as the case may be, result — 203 — ing in what is referred to in the record as a two-way ditch. This is not an entirely apt description because the high point in the existing ditch bottom is near the ditch junction and the next highest point is at the ridge some 800 feet to the north. Water entering the ditch south of the ridge is trapped between these points and, except for overflow, cannot drain in either direction. D. C. Barbot, Jr., an engineer employed by the developer to solve its drainage problem, testified at the post-remand hearing that in his opinion the north-south ditch had originally been cut to a 0.10% grade from its junction with the east-west ditch to an outfall in McCall Branch, and that, at this grade and between these points, the ditch would be capable of furnishing adequate drainage to the property in question and had done so in the past. The witness further testified that the ditch has been filled in by crumbling of the banks and an accumulation of sand, dirt and other materials over the years, and that the original depth would be restored by establishing the suggested grade, which could be accomplished by excavating not more than 3.3 feet below the existing bottom at any point. Based upon this testimony, the court authorized the excavation of the ditch by the means and to the extent indicated above. Reluctant as we are to reverse the able judge of the court below on a finding of fact, this is an equity case in which it is our responsibility to weigh the evidence. Careful consideration of the record of the original and post-remand hearings leads to the clear conviction that the court’s finding that the north-south ditch was originally dug to grade through the highland forming a natural watershed between the east-west ditch and McCall Branch is against the clear preponderance of the evidence. Barbot testified at the original hearing that his first plan was to follow the natural drainage to Beaverdam Creek by the east-west route. He was attracted to the north-south route when Douglas indicated a preference for it during right-of-way negotiations. — 204 — A Barbot drawing labeled “Original Profiles Ground & Ditches” was introduced in evidence at the original hearing. The profile of the east-west ditch includes the higher ditch bank and the bottom of the existing ditch, with elevations every 200 feet. A straight dotted line, below the existing ditch bottom, designated “Estimated Original Ditch Grade @ 0.10%” is depicted. The profile of the north-south ditch is similar except for the omission of the line representing estimated original ditch grade. This is consistent with Bar-bot’s testimony that he established the original grade of the east-west ditch by digging through the sediment to the solid clay at a number of points. He did not make similar excavations in the north-south route. At the original hearing, without relating the feasibility of the north-south route (against the natural watershed) to the original grade of the ditch in any way, Barbot testified that his survey determined that the newly dug canal on Andrews’ land was deep enough to furnish “sufficient fall to take the water in that direction.” To accomplish this, the existing ditch would have to be lowered some four feet in places to a depth of something like 8.3 feet. The ditch would have to be “cut real deep, but it was feasible.” When Barbot was recalled at the post-remand hearing, he produced another copy of the drawing which had been used at the first reference. A dotted line below the existing bottom of the north-south ditch, corresponding to the line on the east-west profile designated as “Estimated Original Ditch Grade @ 0.10%.” appears on this copy of the profile of the north-south ditch. However, this new line bore no descriptive designation by the draftsman, and the witness did- not identify it orally as representing the original ditch grade, real or estimated. We quote from the witness’ testimony: “Now, I will ask you what in your opinion is the maximum amount of dirt that would have to be excavated from . . . this north-south ditch in order to restore it, in your opinion, to its original depth? — 205 — “A. I would say on the north-south ditch the maximum amount of dirt that would have .to be removed would be somewhere in the neighborhood of 3 to 3.3 feet. “Q. And that is, of course, not a regular thing? You are not saying that it would be 3.3 feet throughout the entire area? “A. It would vary . . . but this is generally what would be required to establish a grade of approximately one-tenth percent on that ditch. “Q. In your opinion then that would restore that ditch to its original depth? “A. Yes, sir, I think that would restore the ditch to the original depth and the original intent for which that ditch was dug — to drain the lower area of Mr. Douglas’s and of Clemson University.” Absent any testimony that the witness conducted an on-site investigation by removal of sediment from the ditch bottom, or applied any other engineering procedure to ascertain the original depth and grade of the ditch, of which there is none, his testimony that the excavation which he found to be necessary to the northward flow of the water would also restore the ditch to its original depth and grade was of no probative value. He simply assumes that the ditch was originally dug to drain water from the area south of the watershed into McCall Branch and assigns to it the minimum depth and grade to accomplish this purpose. This assumption is opposed by all of the other testimony in point, including that of the witness Harrell, who knew the property intimately during thirty-eight years as an employee of the experimental station, and that of the sixty-five-year-old appellant, who has known the property, which formerly belonged to his father, since boyhood. We conclude that the court’s finding on this dispositive issue of fact was error, and that the order appealed from imposes burdens on ap — 206 — pellant’s land which exceed the respondent’s prescriptive rights therein. Reversed. Moss, C. J., and Lewis and Littlejohn, JJ., concur. Bussey, J., dissents.