56 S.E. 858 | N.C. | 1907
The plaintiff alleges that he owns and cultivates a tract of land in Halifax County, containing about 1,400 acres and lying on the south side of the Roanoke River, and the defendant owns and cultivates a large tract of land which lies above the plaintiff's and between it and the said river. The plaintiff and those under whom he claims have for many years maintained, on what is now his farm, a dam or embankment, which is parallel with the said river and about one-half mile therefrom, for the purpose of preventing the flooding of the plaintiff's cultivated lands by the waters of the river which overflow its banks in times of high freshets. There is a large bend in said river just opposite the farms of the plaintiff and defendant, the same beginning on defendant's farm, extending out in a north or northeast direction, and ending just below plaintiff's farm. Extending across said bend, from about where it begins on defendant's farm to where it ends below plaintiff's farm, is a wide natural depression, or drain, ranging in width from about 300 yards to a mile, which is the natural course, (66) or drain, for a large portion of the waters of said river in times of freshets and floods. Said drain runs about parallel to plaintiff's dam, between it and the river, and not only affords room for the spread of the waters of the river, but takes the overflow waters, or the greater part thereof, across said bend and past plaintiff's farm very much more rapidly and quickly than the same could be taken by the course of the river. In 1897 the defendant wrongfully and unlawfully erected a cross-dam from a point on Roanoke River about opposite the lower part *48 of plaintiff's dam, across said depression or drain, to the plaintiff's dam near its lower end, extending the same over the lands of one W. H. Josey, and for a short distance over the plaintiff's land, and joining it to the plaintiff's dam without plaintiff's consent. Said cross-dam runs at about a right angle to plaintiff's dam, and was made higher and much stronger than his dam. The defendant has ever since wrongfully and unlawfully maintained said cross-dam.
That the defendant wrongfully and unlawfully erected a dam or embankment from the end of said cross-dam next to the river up and along said river to a point some distance above plaintiff's farm, and thence across to the high-land of the defendant's farm, the latter part of said dam being called the "upper dam." The defendant wrongfully and unlawfully maintained said dams until 25 May, 1901.
It is further alleged that the defendant unlawfully and wrongfully obstructed the natural flow of the water in the river and caused the same to pond and collect in larger quantity than it otherwise would have done. It is then alleged that in May, 1901, there was a large freshet in the river, and the defendant's upper dam, by reason of its negligent and faulty construction, gave way, and the waters of (68) the river were thrown upon the plaintiff's land in much greater volume and with much greater force than would have been the case if the said dam had not been there, and that the lower or cross-dam stopped the flow of the water as it rushed down the said natural drain or depression and caused it to be ponded back on the plaintiff's land and against his dam so that it broke and the water escaped through the breach thus made and flooded the plaintiff's lands, to his great damage. The plaintiff also alleges separately that the said wrongful acts of the defendant were negligently done, in respect not only to the manner of constructing the dams, but to the obstruction of the natural flow of the water.
The material allegations of the complaint were denied by the defendant, which pleaded specially that it had acquired an easement, by twenty years adverse user, to maintain the lower or cross-dam as well as the other dams described in the complaint, and that it owned no duty to the plaintiff concerning the same and had committed no wrong to him by reason of the alleged acts of which he complains.
In order to show that the plaintiff's dam was broken by the ponding of water back upon it, and that this was caused by the cross-dam of the defendant obstructing the natural flow of the water from the river down the natural depression or channel and through the defendant's land, the plaintiff proposed to show by his own testimony that since the cross-dam was erected his dam had been broken several times at the same place. The defendant restored it each time it broke, and the *49
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plaintiff testified that when restored it was not as good a dam as it was before the first break. It was about the same height, though not as thick. This evidence was admitted over the defendant's objection. The plaintiff had previously testified that the break in his dam was about 10 feet from the defendant's cross-dam — right at the junction (69) of the two dams. The witness also testified that if the upper dam and the cross-dam were not there, the natural course of the overflow water during freshets would be down the deep depression on the defendant's land, and that his dam had not broken until the cross-dam was built, the latter being higher and thicker than his dam. There was evidence tending to show that the deep depression on the defendant's land served as a natural drain or flood channel for the waters of the river in times of freshets. The defendant's proof tended to show that the plaintiff's dam was stronger and better when it was restored than it had been before. The parties introduced testimony which tended to sustain their respective contentions.
The defendant in apt time requested the court to submit the following issues to the jury:
1. Did the defendant by its maintenance of its river dam wrongfully cause any injury to the plaintiff?
2. Did the defendant have an easement to maintain said dam?
3. Did the plaintiff enter into an agreement with the defendant to forego any right to recover damages if the defendant would restore plaintiff's dam to the condition in which it was before the injury?
4. Did the defendant comply with said agreement?
5. What damage, if any, has plaintiff sustained?
The court refused to submit the issues, and defendant excepted. The court then submitted three issues, which, with the answers thereto, were as follows:
1. Did the defendant negligently obstruct the natural flow of the flood waters of Roanoke River by its dams, and cause the same to collect and be thrown against plaintiff's dam in greater volume and force than they naturally would have been, and thereby break plaintiff's dam and flood and injure his farm, as alleged? Ans.: No.
2. Did defendant by its dam wrongfully and unlawfully obstruct the natural flow of the flood waters of Roanoke River and cause the (70) same to collect and be thrown upon plaintiff's dam in greater violence and force than they otherwise would have been, and thereby break the same and flood and injure plaintiff's farm, as alleged? Ans.: Yes.
3. What damage, if any, is plaintiff entitled to recover? Ans.: $1,000. *51
The court charged the jury in part as follows: "The plaintiff contends that outside of said dam and between it and the main channel of the river there is a natural depression or drain 300 or more yards wide, which is a natural flood channel of Roanoke River, that is, a channel through which the overflow waters of the river naturally flow whenever the waters rise sufficiently high to overflow the banks of the main channel of said river, and the court charges you, if you find this to be true, that there was such a flood channel between the plaintiff' dam and the river, that the defendant had no right to obstruct said channel with his dam or dams, unless the defendant has shown by a preponderance of evidence that it had an easement or prescriptive right to do so." "That water resulting from an overflow in districts where flood waters cover great tracts of land may be treated as surface water, and the landowner incurs no liability where in protecting his land from such overflow he throws the water upon an adjoining proprietor, except when he diverts or obstructs water from the flood channel of such stream, for the flood channel of a stream is as much a natural part of it as is the ordinary channel." The defendant excepted to each of these instructions.
The other facts pertinent to the exceptions relied on in this Court are stated in the opinion. There was a judgment upon the verdict for the plaintiff, and defendant appealed.
After stating the case: There are only two exceptions discussed (71) in the appellant's brief, and those not mentioned are to be taken as having been abandoned under Rule 40 of this Court,
The court below need not submit issues in any particular form. If they are framed in such a way as to present the material matters in dispute and so as to enable each of the parties to have the full benefit of his contention before the jury and a fair chance to develop his case, and if, when answered, the issues are sufficient to determine the rights of the parties and to support the judgment, the requirement of the statute is fully met. Hatcher v. Dabbs,
The two questions reserved, under the rule, in the defendant's brief, and to which the argument before us was mainly addressed, relate, first, to the competency of the plaintiff's testimony as to the several breaks in his dam after the defendant's cross-dam was constructed, and, second, to the liability of the defendant for having obstructed the flood channel of the river on his own land by his cross-dam and thereby diverting the water to the plaintiff's dam and causing the same to break and his lands to be flooded.
As to the relevancy of the evidence admitted by the court, the ruling, we think, was free from error. The plaintiff testified that before the cross-dam was erected the overflow or flood water of the river was accustomed to pass down the depression at the foot of his dam without doing any injury thereto, and that his dam was broken by the ponding of the water back against it, which was caused by the obstruction of the defendant's cross-dam to its natural flow. He further stated that his dam had never been broken by the water before the erection of the cross-dam, but that after its erection it had broken three times during freshets, on account of the ponding of the water. There was no objection (73) when he testified to the first break in his dam in May, 1901. We do not see why the evidence as to all the breaks was not relevant to the issue. If the dam had not been injured before the cross-dam was erected and the water was ponded back, and the plaintiff's dam was *53
broken several times after it was erected, this would seem to indicate a casual connection between the erection of the dam and the injury which followed. There was the positive evidence of the plaintiff as to the cause of the first break in the dam, namely, the freshet and the cross-dam; and, if necessary, this should be considered in passing upon the testimony to which objection was taken. If by relevancy is meant the logical relation between the proposed evidence and the fact to be established, the testimony was admissible when tested by this definition. It is not a case where conditions are required to be the same, or at least similar, as where a comparison between two things is made to ascertain if they have the capacity to produce the same effect, as in Rice v. R. R.,
This brings us to the consideration of the principal question in the case: Could the defendant legally obstruct what is known as the flood channel of the river by erecting a dam across it and thereby force the water back upon the plaintiff's dam to his injury, as already described? We think it is thoroughly well settled that it cannot, but is liable for the damages which resulted proximately from its wrongful act. "Every stream flowing through a country subject to a changeable climate must have periods of high and low water. And it must have not only its *54 ordinary channel, which carries the water at ordinary times, but it must have, also, its flood channel, to accommodate the water when additional quantities find their way into the stream. The flood channel of the stream is as much a natural part of it as the ordinary channel. It is provided by nature and it is necessary to the safe discharge of the (increased) volume of water. With this flood channel no one is permitted to interfere to the injury of other riparian owners." 3 Farnham on Waters, secs. 879 and 880. It is further said, by the same (75) author, that the courts are very nearly agreed that the flood channel must be considered as a part of the stream, and no structures or obstruction of any kind can be placed in its bed which will have a tendency to dam the waters back upon the property of another riparian proprietor. The depression or drain which is mentioned in the evidence is a high-water channel of the kind described. It is auxiliary to the main channel, relieving it when the water is high and the swollen stream overflows its banks, the low places on the river acting as natural safety valves in times of freshets. These depressions or channels being provided by nature for the safe discharge of the large volume of water when the bed of the stream becomes incapable of retaining it, the course which the flood water is in the habit of taking through them cannot be changed or obstructed to the injury of adjoining private landowners. Farnham on Waters, sec. 880. The wrong committed in blocking such a channel is of the same character as that of one who closes a natural drainway on his own land and thereby causes the land of an upper proprietor to be flooded by the backwater.
The principle governing this case has frequently been recognized and applied by this Court. In Overton v. Sawyer,
The principle, in its application to flood waters, is clearly stated in Jones on Easements, sec. 729, where it is said generally that water which in times of freshet overflows the bank of a stream, and is accustomed to flow over adjacent lowlands in a defined stream, is to be treated as a watercourse, rather than as surface water, and a riparian owner is not allowed to stop the flow by erecting barriers to the injury of another. See, also, 13 Am. and Eng. Enc. (2 Ed.), 687; Jones v. R. R.,
The fact that other causes may have concurred with the defendant's wrong in producing the injury does not relieve it of liability; for tort feasors
contributing to the same injury are jointly and severally liable. Dillon v.Raleigh,
The other exceptions, which are not mentioned in the brief of the defendant's counsel, disclose no reversible error, as we have stated, and require no special comment.
No error.
CLARK, C. J., did not sit on the hearing of this case.
Cited: Aden v. Doub,
(79)