48 S.E. 770 | N.C. | 1904
This is a petition to rehear the above-entitled case, which was decided by this Court at Spring Term, 1904, *266
and is reported in
But we think the error in this instruction more clearly appears when it is considered in connection with a subsequent instruction of the Court upon the question of damages. The Court charged the jury as follows: "If the plaintiffs have been damaged and the erection of the dam caused any damage, they are entitled to recover damages. If not damaged, or if damaged and the dam not the cause of the damage, they are entitled to recover nothing." In this instruction the jury told that if the erection of the dam caused damage the plaintiffs are entitled to recover it, but if the plaintiffs were not damaged "they are entitled to recover nothing." In other words, the plaintiffs are not entitled to recover anything, not even nominal damages, unless they have proved that they were damaged. The Court is here speaking of the damage and not of the injury or the technical invasion of the right. The first instruction (367) related to the trespass, the act of raising the water in the stream so that it flowed upon the plaintiffs' land, and this instruction refers to the consequent damage. It will be observed that the Court charged that if there was no damage shown the plaintiffs would recover "nothing," not even nominal damages, whereas it is conceded, as it should be, that if there was even a technical invasion of their premises the plaintiffs were entitled to recover at least nominal damages, even though they showed no actual or substantial damages. In any view we are able to take of the case, we think the charge of the Court in the particulars mentioned was at least calculated to mislead *268
the jury (Bank v. Gilmer,
The plaintiffs' counsel contend in their brief on the rehearing that the evidence of the plaintiffs showed that the water had been raised in the stream by the dam six feet, and that of the defendant that it had been raised two feet and nine inches. We do not consider this contention of counsel, for we are not fully advised as to how this rise affected the plaintiffs' land, if at all, and it is well not to express any opinion based upon the contention, as the defendant may be able to show at the next trial that there was not even any technical injury to the plaintiffs' land.
The views we expressed at the last term, and those which we now hold, seem to be strongly supported by a recent text-book which we find to be of exceptional merit. The writer substantially says: Each owner of land along a watercourse has the natural right to have the stream maintain the condition which nature gives it throughout the entire extent of its territory. This rule gives him the right to have the water leave his land at its lowest level, as well as the right to have the water come down to him from above. Rights in running water are (368) governed by the maxim, aqua currit et debet currere ut currere solebat. The right to the natural flow of the stream is a natural right and depends solely on ownership of the banks of the stream, regardless of whether any use has been made of it or not. Any swelling of the stream over the line is an invasion of the rights of the upper owner, who has a right to the stream in its natural condition, which he may protect not only for present needs but for possible future ones. It constitutes a direct trespass upon his property which he may seek the aid of the courts to redress, and he is not bound to show that he is specially injured to maintain the action. Injury is shown as soon as it appears that the water is backed over the line. The upper proprietor has a right to protect himself from the acquisition of prescriptive rights at least, and that right is not diminished by the fact that he has no present use for his rights to their full extent. When the rights of the upper owner are invaded, the law presumes damage. The maxim of the common law that the owner of the soil has absolute dominion over it above and below the surface, and damage caused to others by his rightful command over his own soil is damnum absque injuria has no application to such a case. Throwing the water back on the upper land is a nuisance in and of itself, of which the upper owner may complain whenever he desires to do so, whether it is a direct injury to him or not. He has a right to have his land free from the water and can object to its presence *269 whenever he chooses; and the lower owner has no right in the premises. Farnham Waters and Water Rights, secs. 546, 547 and 551.
The plaintiffs' counsel again complain of the charge of the Court upon the degree of proof required of the plaintiffs to entitle them to a verdict. The charge of the Judge should be considered in its entirety. Isolated expressions are not a fair or reliable test of judicial accuracy. Reviewing the charge as a whole, upon this point, we are satisfied that (369) it is sustained by reason and the weight of authority.
We do not think the decision of the Court at the last term is erroneous in the respect complained of and it must therefore stand. This dismisses the petition.
Petition dismissed.