89 S.E. 803 | N.C. | 1916
This is an action against the drainage commissioners as a board, and also individually, for the diversion of water whereby the lands of the plaintiffs outside of, and below, the drainage district have been injured. *69
The ruling of this Court is well settled that the upper proprietor "may accelerate, but cannot divert," water to the injury of the lower proprietor. It is not controverted, and must be taken as true upon this nonsuit, that the water of the drainage district was diverted by this canal and thrown upon the lands of the plaintiffs to their injury. If the defendants had been an individual proprietor there can be no question of his liability. The sole question raised by the nonsuit granted by the court is whether the defendants are exempt from such liability because it is an incorporated body, known as the "Board of Commissioners of the Drainage District," and are also free from liability individually.
We think they are liable in both capacities. It is true that the drainage district is a quasi-public corporation. Sanderlin v. Lukens,
In Drainage Comrs. v. Webb,
The above case was cited with approval, Drainage Comrs. v. Farm Assn.,
Drainage districts are favored because of the public benefit, but none the less the prime motive in organizing them is the pecuniary benefit to the corporations. The State confers on them the right of eminent domain, but cannot exempt from taxation or exempt them from liability. They stand on the same footing in these respects with other quasi-public corporations.
The subject is very fully discussed in Bradbury v. Drainage District
(
The present case is easily distinguished from Newby v. Drainage Comrs.,
(28) It was not necessary in this case to decide what remedy the plaintiffs would have should they obtain judgment against the drainage district, whether it would be by mandamus to extend the canal past the plaintiffs' land, or to so change it above as not to divert water which otherwise would not naturally come down the canal and flood the plaintiffs' land, or by a mandamus to assess the lands in the district to pay a pecuniary recovery, for the reason that though the nonsuit is set aside, it may be that the plaintiffs will not recover any judgment because of failure of the jury to find that there has been a diversion of the water or any injury sustained by the plaintiffs. In such case any opinion we might now express as to the enforcement of a possible judgment would be obiter dictum.
We are also of opinion that though no bad faith or malice on the part of the commissioners individually is indicated in the evidence, they are individually liable because there was no legal authority for them to extend their canal beyond the limits of the district in such a manner as to divert the water upon the lands of the plaintiffs to their detriment. In Hitch v.Comrs.,
These drainage districts are created for the benefit of the people of the locality, and are favored with certain privileges of eminent domain and otherwise because of the general benefit to the public. But they are not exempt from liability for their torts or contracts. And the commissioners, as their agents, are individually liable if they act illegally or negligently, so as to injure others outside of the district. The judgment of nonsuit is
Reversed.
Cited: Price v. Trustees,
(29)