32 S.E. 317 | N.C. | 1899
This is an action for damages to plaintiffs' land by the overflow of water caused by the negligent and unskillful (26) manner in which the defendant constructed its road.
Upon the close of the plaintiffs' evidence, the court intimated the opinion that plaintiffs could not recover, and plaintiffs submitted to a judgment of nonsuit and appealed.
There are no grounds set out in the statement of the case why the court was of the opinion that plaintiffs could not recover. And we would have been at a loss to know upon what grounds the opinion of the court was founded if they had not been stated by defendant's counsel in his brief. We learn from this that there were two grounds that appeared to his Honor as defects, that influenced him to come to the judgment he did: First, that plaintiffs failed to allege and prove that they were the owners of the land alleged to be damaged, and secondly, that it appeared to his Honor that plaintiffs were tenants in common with other persons, and that this was alleged in the complaint.
It is not necessary that we should consider whether possession would not entitle the plaintiffs to at least nominal damages; nor is it necessary that we should consider whether one tenant in common could not maintain such an action, which is trespass or in the nature of trespass, as neither of these questions is presented by the record. Nor is it necessary that we should decide that any proposition, necessary to be proved by plaintiffs, was established. It is sufficient in such cases of nonsuit, where it is our duty, to take every proposition, when there is evidence tending to prove it, as proved.
The plaintiffs allege their ownership in fee simple. There was evidence tending to prove that one Knight owned the land before defendant constructed its road in 1889; that he died, and it descended to his heirs at law, six in number; that it had been divided between them *47 under proceedings in court; that embankment four feet high had (27) been made along the stream fifty years ago to prevent the overflow of water on plaintiffs' land, and that these embankments had been constantly kept up for fifty years; that the lands mentioned in the complaint were two of the shares of the Knight lands, one of them falling to the feme plaintiff in the division, and the other share she acquired by purchase from one of the other heirs of said Knight; that there was evidence tending to prove the negligent construction of the road by the defendant, the damage caused thereby, and the amount of said damage.
This being so, we can see no ground upon which the ruling of the court below can be sustained, and there must be a
NEW TRIAL.
Cited: Printing Co. v. Raleigh,
