422 F2d 389 Key Sales Company v. South Carolina Electric & Gas Company

422 F.2d 389


No. 13456.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 9, 1970.
Decided Feb. 12, 1970.

Julius W. McKay, Albert L. Moses, Columbia, S.C., and Jack W. Floyd, Greensboro, N.C. (McKay, McKay, Black, Sherrill, Walker & Wilkins, Columbia, S.C., Smith, Moore, Smith, Schell & Hunter, Greensboro, N.C., on brief), for appellant.

Harold W. Jacobs and Charles W. Knowlton, Columbia, S.C. (Frank B. Gary, Cooper, Gary, Nexsen & Pruet, Boyd, Bruton, Knowlton & Tate, Columbia, S.C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BOREMAN and BUTZNER, Circuit Judges.


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Key Sales Co., a real estate developer, appeals from a judgment denying it recovery for flood damages by water released from the South Carolina Electric & Gas Company's hydroelectric dam on the Saluda River.1 Amply supported by the record, the district judge found that the peak discharge of water from the dam did not exceed the peak flow of water into the dam, that the realty company's land which lay in the flood plain of the river had been flooded 15 times in the last eighty years, and that the extraordinary rainfall on this occasion would have flooded it had the dam not been in existence. He also held that the power company exercised due care in evaluating weather reports and in operating its dam. The district judge, correctly we believe, interpreted the law of South Carolina, which governs this diversity action, and rightly concluded that the power company was not liable under any of the several theories the realty company asserted for recovery.


Furthermore, since the power company was not obliged by state law or federal license to operate its dam as a flood control facility for the benefit of lower riparian owners, liability cannot be based on 16 U.S.C. 803(c). We do not foreclose, however, the possibility under other circumstances of giving this statute a broader construction than that accorded it by the district judge.


The judgment is affirmed.


Key Sales Co. v. South Carolina Electric & Gas Co., 290 F.Supp. 8 (D.S.C.1968)