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

1. Nuisance — Remedies—Highways.—Indictment.—-The remedy for the removal of an obstruction on a navigable inland river is by indictment, unless some individual can show special or peculiar damage, differing in kind to that to which all others in common with him are exposed. 2. Nonsuit — Complaint.—The allegations in this complaint does not take the case out of the general rule, and it was error in the Circuit Judge not to grant the motion for nonsuit upon the ground that the complaint did not state facts sufficient to constitute a cause of action. 3. Damages — Contract.—Damages resulting from a breach of contract on the part of defendant to open its “draw” on the days of plaintiff's regular trips, would not come directly from the obstruction complained of, and, therefore, the allegations of such breach would not bring this case within the exception to the general rule. 4. Mr. Justice Gary, dissenting.

Before Townsend, J., Marion, April, 1895. This action was commenced in July, 1893, by service of following complaint: The plaintiff, complaining of the defendant, alleges: First. That the plaintiff is a corporation duly created by and existing under the laws of the State of South Carolina aforesaid, under the name of the South Carolina Steamboat Company. Second. That the defendant is a corporation duly created by and existing under the laws of the State of South Carolina aforesaid, under the name of the Wilmington, Columbia and Augusta Railway Company. Third. That the plaintiff has, for a large number of years and under the provisions of its charter as a common carrier, constantly and without intermission run a line of steamers from the port of Georgetwon, up and along the Pee Dee River, and to all points on said river, for the purpose of transporting passengers, produce, manufactured goods, general merchandise and other freight, to and along the said river, and to and at the several stations used by the said plaintiff along the said river, for the receipt and delivery of such passengers, freight, and merchandise. That in the course of such employment the plaintiff has built and owns a large number of steamers, which are exclusively used for such transportation of freight and merchandise along the said Pee Dee River, the said steamers being of great value. That it was well known to the public generally, and to the defendant especially, that the plaintiff was engaged in this business. That, as a matter of fact, the plaintiff has for years been exchanging freight with the defendant from and for points on said river, both above and below the point where the railroad track and bridge of the defendant crosses the river. Fourth. That by reason of such long and regularly continued line of boats so made by the plaintiff on the said Pee Dee River, the plaintiff had built up a large, valuable, and lucrative business in the transportation of freight and passengers to and between the said stations so used by it along the said river. That the value of said business depended and depends, to a very large extent, on the regularity of the trips made by the steamers of the plaintiff, and on the certainty with which parties living along the shores of the said river might and ma}^ calculate upon the arrival and departure of said steamers, as means for the transportation of freight and passengers. That it is, therefore, a matter of vital importance, and great value to the plaintiff, that the trips of the said steamers should not be interrupted, but that they should be made regularly and according to their established and advertised schedules. Fifth. That the Pee Dee River is a navigable river, lying and being in this State and partly in the county of Marion, and that the same has, for a number of years past, been actually navigated by this plaintiff by the use of its boats, as hereinbefore described. Sixth. That the defendant, also a common carrier, is engaged in the business of running a railroad in this State, and that the said railroad crosses the said river at a point midway of the line of travel on said river used by the plaintiff with its steamers. That in order to cross the said river, the defendant has erected and maintained a bridge, which bridge is situated partly within the county of Marion, but that in order not to obstruct, but allow the free use of the said river by the plaintiff and others similarly situated, there had been placed in the said bridge a draw, which could be and was opened from time to time for the passage up and down the river of the steamers so owned by the plaintiff. Seventh. That some time in the fall of 1892, the defendant desired, for its own advantage and to continne its own business, to do certain repairs on the said bridge. That in order to make such repairs, it was found necessary either to close the draw of said bridge, thereby stopping the use of the said river by this plaintiff and breaking up the schedule established by it by long continued usage, and causing it especial loss and damage, or else that the draw should be left open, thereby causing no inconvenience whatever to the plaintiff, but interfering with the use of the said bridge by the defendant as a means of passing over the said river. That it became, therefore, a question with the defendant whether, in order to effect the repairs which it desired, for its benefit to make o'n said bridge, it should break up and interrupt the business of this plaintiff carried on by it along the said river, and thereby cause it especial and great damage, or interrupt its own business carried on by it over the said bridge, to its own loss and damage. Eighth. That the plaintiff and the defendant are and for years have been to a large extent competitors for the business arising along the river and in the vicinity of the crossing of the same by the said bridge, and that it is, therefore, of importance to each, that their respective schedules shall be maintained, and a matter of special damage to the competitor that its schedule should be broken and interfered with, and the continuance of its regular services interrupted. Ninth. That it was well known to the defendant that any stoppage of navigation on said river, by closing the draw of said bridge, would.cause serious and special damage to the complainants. That about eight years previous, to the date hereinafter mentioned, repairs were deemed necessary on the said bridge by defendants, but before making the same and closing the draw therein, timely notice was given to and satisfactory arrangements made with the plaintiff to keep and maintain one of its steamers in the said river above the said bridge, in order not to interrupt the business of the plaintiff or cause it the loss and damage which- would necessarily and especially be caused to it by closing the said bridge and interrupting its regular schedule and communication. And that a large and additional expense incident to and attendant upon such arrangement, and the maintaining of such extra boat above the bridge, was borne and paid by the defendant. Tenth. That before actually beginning the said repairs in the said fall of the year 1892, the defendant notified this plaintiff that, in order to accommodate them both and cause damage to neither, it, the defendant, would arrange to open the channel of the said river, by opening the draw in the bridge, and thereby removing any and all obstruction to the free navigation thereof on the regular days used by the plaintiff for passing up and down the said river. That relying upon this assurance, the plaintiff did not, as it had intended to do, retain a boat above the bridge to carry on its business there, but allowed its boat then above the bridge to come down the river. But upon the return of the said steamer loaded with freight for points above the said bridge on the next regular day, according to its schedule for passing up the river, the plaintiff found, to its great surprise, that the defendant, disregarding its promises and assurances, had closed the said bridge, to its own advantage and to the special detriment and damage of the plaintiff, and declined, upon the demand of the plaintiff, to open the same or to allow the steamer of the plaintiff to pass through. Eleventh. That in violation of the promise and undertaking of the defendant, and of the provisions of the laws of this State, the said bridge was unlawfully and illegally kept closed by the defendant from the 14th day of- September, A. D. 1892, to the 12th day of October, A. D. 1892, to the special and peculiar damage and detriment of this plaintiff. That it was thereby prevented from making its trips, according to schedule time, over the river above the said bridge. That its business, created by long years of uninterrupted service, was broken in upon and seriously injured. That it was put to expense and suffered damage by reason of the fact that, assuming that the bridge would be kept open according to promise, it had received freight for stations above the said bridge, which, in consequence of this unlawful act of the defendant, it was prevented from delivering, and was also prevented from receiving freight from said stations for transportation down the said river, which it had contracted to transport. That thereby special and particular injury and damage was caused to this plaintiff. Twelfth. That meanwhile, and during the closing of the said bridge, the defendant continued to use the same for the passage of its trains, thereby maintaining uninterruptedly and uubrokenly its transportation and its schedules of doing business. That business, which was properly to be done by this plaintiff, was, in consequence of such illegal act of the defendant, transferred to the defendant, to its great gain and advantage and the damage and loss of this plaintiff; and that the defendant, therefore, by such unlawful acts, to continue benefit to itself at the known and recognized loss of the defendant and damage to the plaintiff, as aforesaid — the defendant then and there well knowing the business in which the plaintiff was engaged, and that the action of the defendant would result in great, peculiar, and especial loss and damage of .the plnintiff. Thirteenth. That, by reason of said unlawful and wrongful acts, plaintiff has been prevented from carrying on its usual and ordinary business; has had its regular schedules interrupted; has been unable to transport freight contracted for bjr it and actually carried up to the point of the said obstruction; has been unable to transport freight downward, and has sustained loss and other great injury to its business, to its damage $5,000. Wherefore the plaintiff demands judgment against the defendant in the sum of $5,000, and its costs in this action. To this complaint the defendant interposed the following written demurrer: I. That there is no allegation showing any direct damage resulting to the plaintiff from obstruction to the river that is special to it and not common to the public at large for which an action would lie. II. That it appears on the face of the complaint that the alleged obstruction to it was temporary, and only for the purpose of making necessary repairs on the defendant’s bridge across the river. The demurrer was overruled, the case tried on defendant’s answer, and verdict obtained for plaintiff for $3,000. Defendant appeals.