The opinion of the court was delivered by: G. Badger Baker, Acting Associate Justice.
The Order of Nonsuit of Judge Greneker follows:
This is an action, characterized by plaintiff's counsel, as a cause of action for damages for the alleged permanent taking of plaintiff's property, within the meaning of Article 1, § 17 of the Constitution of South Carolina, as a result of the erection and operation of the defendant's dam and hydroelectric plant on Saluda River. This project, built and operated by Greenwood County was erected and is operated pursuant to legislative authority and also pursuant to a permit from the Federal Power Commission.
The plaintiff, John S. Webb, owns two tracts of land on Saluda River in Saluda County, near Chappells, South Carolina. These tracts are located about five and eight miles respectively below the dam which creates Lake Greenwood.
It appears that the cycle of power generation governed by the daily cycle of demand for electricity causes the level of the water in the Saluda River to rise and fall within the banks in a daily and weekly pattern. This makes the problem of plaintiff's cattle drinking in the river more hazardous as the banks on his tracts are steep. Cattle are caught in the stream by rising water and must be extricated. More emphasis was placed upon the effect upon the watering of cattle in the stream and of the cattle being either unable to get to the water or being caught by rising water than any other phase of injury. Proof was offered that the water flows faster and collects mud from banks in the stream bed and when the water overflows the banks, there is deposited upon the grass on plaintiff's pastures, an undesirable mud which causes cattle to refuse to graze on it until the mud is washed off by rain. No damages are claimed for erosion of banks as such.
It was testified that there is a ditch or low place on plaintiff's land that runs from an area behind one of his pastures into the river and that the raising and lowering of the water daily, "like clockwork" as described by the plaintiff, causes the water to back up this ditch or slough and cut off the cattle in the pasture from the remainder of the farm.
Plaintiff testified that there were fewer overflows and the crest of those was lower in general since the plant has been operated by the defendant, but that since the dam was built overflows occur some time when there has been no rain on the farm.
This testimony was composed of comparisons of conditions before and after the operation of the hydro-electric plant. No specific instances were described. Testimony as to damages were practically all related to before and after the structure.
The dam and plant were built in 1940 pursuant to a permit of the Federal Power Commission. No evidence was offered to show it had been altered in structure or mode of operation since it was built.
Upon the close of plaintiff's case, defendant moved for an Order of Non-Suit based upon the following grounds.
First, that the action is barred by reason of the six-year Statute of Limitations pleaded by the defendant for the reason that the right of action, if any, accrued more than six years prior to the commencement of the action.
Second, the Statute of Limitations bars recovery for any taking or damages occurring more than six years prior to the commencement of this action, even if this were a continuing nuisance.
Third, that Saluda River is at the points in question a navigable stream of the State of South Carolina, and by reason of the approval of this public use of such stream by the State of South Carolina, the control of the flow within the banks is an exercise of the dominant servitude in the State and if injuries result to a lower riparian owner, such is damnum absque injuria.
Defendant also stated that if the above grounds were not sustained, there were other alternate grounds which would then be asserted.
In view of the decision upon the first ground stated above, it will not be necessary to develop the other two although they appear to be sound.
The Statute of Limitations for damage or injury to real estate is six years. Code of Laws of South Carolina 1952, § 10-143. Plaintiff takes the interesting position that since the taking of private property for a public use without just compensation is prohibited by the Constitution of South Carolina, Article 1, § 17, no Statute of Limitations can be imposed by the Legislature of South Carolina, as such an act would cut into the Constitutional grant. It is urged by Plaintiff's counsel that the decision in Chick Springs Water Company v. State Highway Department, 1930, 159 S.C. 481, 157 S.E. 842 implies that, since the section is self-executing, any conditions upon its exercise are invalid and cities Oklahoma City v. Wells, 1930, 185 Okla. 369, 91 P.2d 1077, 123 A.L.R. 662 as further authority. In the Chick Springs case, the Court held the statute, requiring notice before suit and providing only a limited amount of recovery, to be inapplicable to the action as that statute was designed for those cases where a plaintiff has been granted permission to sue the State for tort arising out of a defect in the highways. It pointed out, of course, that the State could not limit the amount of recovery in a "taking" case since the Constitution guaranteed "just compensation". However, the type of notice there involved was a prerequisite to suit, not a passive limitation setting forth a reasonable time within which self-executing right could be enforced.
The Oklahoma City case and others cited in the annotation therein, related entirely to the problem of whether or not a statutory proceeding for compensation for a direct appropriation of private property is an "action" so as to be governed by a general Statute of Limitations. That case involved a proceeding for a "taking" by eminent domain, the grounds being a statutory proceeding for compensation. The present case is a suit for a "taking" by consequential damages resultant from the building and ordinary operation of the project several miles upstream.
The plaintiff's position is clearly outlined and distinguished
in Stranaham v. City of Havre, 1941, 112 Mont. 591,
119 P.2d 629, 139 A.L.R. 1286 and annotation at
page 1288. There the suit was for a constitutional "taking" by consequential damages, and it held that unlike the type of
proceeding in the Oklahoma City case, the Statute of Limitations
here was not a prerequisite to suit but rather a Statute
of repose as are all ordinary Statutes of Limitations, and
as such, affects the remedy only and not the right itself, and
is not prohibited by the Constitution. The Court said:
"As to the application of the ordinary statutes of limitation in actions for consequential damages as a result of taking or damaging property for public use, there are cases cited from 29 states in the annotation in 30 A.L.R. 1190. Among those cases are many dealing with the application of statutes of limitation under facts similar to those here. In those cases limitation statutes are applied in many cases where property has been damaged as a consequence of a taking of adjacent property for public use. In none is the statute of limitations declared to be in contravention of the Constitution."
The annotation referred to in the opinion is further elaborated by many subsequent decisions to the same effect in 139 A.L.R. 1288.
The general law as to the application of the Statute of Limitations to an action of this type is quite clear, but it is unnecessary to go beyond our own cases to decide this issue. This has been developed here at some length only because of the position of plaintiff's counsel that our cases do not apply. Conestee Mills v. City of Greenville, 1931, 160 S.C. 10, 158 S.E. 113, 75 A.L.R. 519, was brought by a lower riparian owner against the City of Greenville for a continuing nuisance due to the dumping of raw sewage into the stream and polluting the same, to such an extent as to constitute a "taking". The Court held these acts by the City of Greenville were negligent and could be abated, and it could not be ...