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Show SOUTH CAROLINA 671 3.7 Diffused Surface Waters From an early date, the South Carolina Court has adhered to what is described as the common enemy rule in the disposal of diffused surface waters.54 The rule exists, however, in a substantially modified form. One exception is that a landowner must not deal with his diffused surface water in such a fashion as to constitute a nuisance.55 The cases deal rather strictly with this exception and refuse to find a nuisance per se unless the water collected and diverted or discharged is "dangerous at all times and under all circumstances to life, health and property." 56 Even though the activity is not a nuisance per se, it may be actionable if it constitutes a private as distinguished from a public nuisance. A private nuisance requires the showing of special damage different in kind and degree from the damage sustained by the public generally. The result is that a landowner is rarely capable of showing that he comes within this exception.57 One rather early case did allow recovery, but it is doubtful whether it would be fol- lowed today.58 Another exception is that the surface water must not be collected into an artificial channel and, in concentrated form, cast upon an- other's land.59 In the reverse situation, this could also impose lia- bility on a lower landowner.60 Two cases seemed to adopt tort rules of negligence to solve surface water problems,61 but there is little evidence that these would be followed today. Since problems concerning diffused surface waters have centered on the means of disposal, little interest has been demonstrated in rights of use of such waters. It appears quite clear, however, that any landowner would have the right to capture and use diffused surface water on his land, and that others could not complain of such use, so long as he did not negligently or unreasonably dis- charge it on lands of another after use. Although diffused surface waters become part of a natural watercourse after physically reach- ing the watercourse, there seems to be nothing in South Carolina law which would suggest that riparian owners on a watercourse could demand that upstream landowners forego use of diffused sur- face waters in order to permit such waters to augment streamflow. 4. Grotjnd Water There appear to be no South Carolina cases on ownership of ground water. An unpublished memorandum by an assistant attorney M Although first discussed in Edwards v. Charlotte, Columbia & Augusta R.R., 39 S.C. 472, 18 S.E. 58 (1893), the leading case is Baltzeger v. Carolina Midland Ry., 54 S.C. 242, 32 S.E. 358 (1899). 65 Baltzeger, note 54 supra. "Id. at 247. 67 See, e.g., Johnson v. Southern Ry., 71 S.C. 241, 50 S.E. 775 (1905) ; Banks v. Southern Ry., 126 S.C. 241, 118 S.E. 923 (1923). <*Deason v. Southern Ry., 142XS.C. 328, 140 S.E. 575 (1927) ; cf. Bowlin v. George, 239 S.C. 429, 123 S.E. 2d 528 (1962) which may take a somewhat more liberal view as to what constitutes a private nuisance. 6« Brandenberg v. Zeigler, 62 S.C. 18, 39 S.E. 790 (1901); Riverbank v. Atlantic Coast Line R.R., 124 S.C. 136, 117 S.E. 206 (1923) ; Garmany v. Southern Ry., 152 S.C. 205, 149 S.E. 765 (1929) ; Morris v. Townsend, 172 S.E. 2d 819 (S.C. 1970). 80 See Slater v. Price, 96 S.C. 245, 80 S.E. 372 (1913). 61 In addition to the Deason case cited in not 5, p. 16, see Touchberry v. Northwest- ern R.R., 88 S.C. 47, 70 S.E. 424 (1911). But cf. Cannon v. Atlantic Coast Line R.R., 97 S.C. 233, 81 S.E. 476 (1913). |
