72 S.E. 210 | N.C. | 1911
After stating the case: It is now well established with us that "Water cannot be diverted, but may be increased and accelerated." The principle obtains in respect to both corporations and individual owners of property, and has been applied and illustrated in many well-considered decisions of the Court. Roberts v. Baldwin,
There was testimony on the part of plaintiff tending to show that the defendant company in making its roadbed had, by lateral ditches, conveyed water from its natural course and watershed into a stream called Patrick's Branch or Hardee's Run, a natural water-course, flowing through plaintiff's lands, and had thereby overcharged said stream, causing same to overflow and pond back upon said lands, to plaintiff's great damage. There was much testimony on part of (158) defendant in denial and rebuttal of plaintiff's evidence, and tending to show that there had been no diversion of water into said run, and that the injury complained of was caused, in fact and in truth, by a failure to properly clear said run of obstructions therein, upon and below the lands of plaintiff. Under a clear and comprehensive charge, in *128 which the principles applicable were correctly stated by the court, the jury have accepted the plaintiff's version of the case, and we find no error that gives defendant any just ground of complaint.
We cannot approve the position that recovery should be denied because the diverted water, before reaching plaintiff's lands, where the damage occurred, first passed through the ditches of an adjoining proprietor. Under the charge, the jury have found that the injury was caused by reason of the water being diverted, and on the facts in evidence we do not see that the existence of these ditches could prevent the said diversion from being the proximate cause of the injury. The position, however, is not open to defendant, on this testimony, for it appeared that the ditches in question were enlarged by the neighbor at the instance of defendant and the work was paid for by the company in order to provide for the increased flow of water. The court also laid down the correct rule as to the admeasurement of damages, and the charge was fully responsive to defendant's prayer for instruction on that question. It is well recognized that a prayer for instructions need not be given in its exact language if the general charge is sufficiently responsive and gives a correct statement of the law applicable to the question presented.Patterson v. McIver,
No error. *129
