34 S.E. 538 | N.C. | 1899
Lead Opinion
This is a civil action in which the complaint, ■after setting' out ownership and possession, alleges as follows:
“2. The defendants, by means of ditches and canals cut by> them, have wrongfully and unlawfully collected large quantities of water and discharged it upon the lands in unusual quantities and with greater rapidity and force than before.
“3. That defendants, by reason of ditches and canals cut by them, have wrongfully and unlawfully diverted from its natural course large quantities of water, and discharged it upon the lands of the plaintiff.”
The defendants, after denying all the allegations of the complaint, further answer as follows: “That on the .... day of August, 1882, by a certain deed executed by the plaintiff and others to these defendants, the said defendants •acquired the right to convey the waters referred to in the complaint from their lands and through the lands of the plaintiff and the other grantors in said deed, a copy of which said deed is attached hereto and made a part of this answer.”
1. Is plaintiff the owner of and in possession of the lands described in the complaint? Yes.
2. Did Mrs. Laura A. McGowan wrongfully and unlawfully divert any water from its natural channel and discharge it upon the land of the plaintiff ? No.
3. What damage, if any, has plaintiff sustained by reason of the wrongful diversion of said water ? None.
4. What damage, if any, has plaintiff sustained by reason of the wrongful collection of water, and its discharge with greater force and rapidity upon plaintiff’s land ? None.
The following is all of the charge that appears in the record:
The Court instructed the jury as to the different phases of the case and, among other things, charged the jury as follows, to-wit: “The owners of lands drained by a watercourse may change and control the natural flow of the surface water thereon, and by ditches and otherwise accelerate the flow or increase the volume of water which r eaches the stream; and if he does this in the reasonable use of his own premises he exercises only a legal right and incurs no liability to a lower proprietor. But a landowner can not concentrate and discharge into the stream the surface water of his land in quantities beyond the natural capacity of the watercourse, to the damage of the lower riparian owners.
“Therefore, it being admitted by the plaintiff that Broad Greet and Moye’s Run are natural watercourses, and that the water of Cooper, Cannon and Baldwin swamps, or at least a
The Court also charged the jury as follows:
“If you find that the defendants, by means of the Parker’s Chapel canal, or otherwise than by means of the canal in Moye’s Run, drained as much water from Baldwin’s Swamp as they diverted into Moye’s Run; if you find that they diverted water from its natural course into- Moye’s Run, then no damage resulted from such diversion, and you will so find.”
(The plaintiff excepted to the foregoing direction to the j^y.)
The Court also told the jury that there was no evidence which connected the defendant L. A. McGowan with any diversion of water in Cooper or Cannon swamps, if there was any diversion; and that they could not consider the evidence of the diversion of water in those swamps, but must restrict their inquiries to Baldwin’s Swamp;
(The plaintiff duly excepted to this direction of the jury.)
There were several exceptions to the testimony, some of which may be good; but, as they are not very clearly expressed, we will not consider them, as we are compelled to order a new trial for error in the charge of the Court.
This case was here before, being reported in 120 N. C., 134. The opinion therein rendered becomes, as far1 as it goes, the law of the case. Among other things, it says: “The
* * * Under this principle the defendants axe permitted not to divert but to drain their land, having due regard
New trial.
Dissenting Opinion
dissenting. I am unable to agree with the majority of the Court in this case. This action was brought against six defendants, including Mrs. Laura A. McGowan. She is the widow of G. A. McGowan, who died since suit brought. For some reason, no one was put on trial except Mrs. McGowan. There is a mass of evidence applicable to the conduct of all the defendants. I shall not trouble
The action is not brought upon alleged breach of contract referred to in the opinion, but it is an action of tort. The trial shows that the question i*eferred to the waters of Baldwin Swamp, the allegation being that the defendant Laui'a had, by cutting ditches, etc., thrown some of those waters on the plaintiff’s land. There is no evidence that she did so. The jury so found. His Honor did not charge that there was any such evidence, and the opinion of this Court does not recite that there was any such evidence. The allegation is denied and the proof fails. If it be assumed that there was an error in the charge, I fail to see why a new tidal should be ordered as to Laura A. McGowan, who is not shown to have taken any part in the alleged tortious act. One of plaintiff’s witnesses testified: “I think that the ditch which carries the water from the basin to Baldwin Swamp was cut bv Billy McGowan, and was widened and deepened by George McGowan.” The agreement referred to allowed defendants to cut and drain “to the mouth of the five-foot canal, known as the Baldwin canal, cut in the summer of 1818,” the date of the agreement being August 1, 1882.
Lead Opinion
Same case reported in
There was verdict and judgment in favor of defendant Laura A. McGowan. Plaintiff appealed.
The charge of the court, to which plaintiff excepted, is quoted in the opinion.
DOUGLAS J., writes the opinion.
FAIRCLOTH, C. J., writes dissenting opinion. This is a civil action in which the complaint, after setting out ownership and possession, alleges as follows:
"2. The defendants, by means of ditches and canals cut by them, have wrongfully and unlawfully collected large quantities of water and discharged it upon the lands in unusual quantities and with greater rapidity and force than before.
"3. That defendants, by reason of ditches and canals cut by them, have wrongfully and unlawfully diverted from its natural course large quantities of water, and discharged it upon the lands of the plaintiff."
The defendants, after denying all the allegations of the complaint, further answer as follows: "That on the. . . . day of August, 1882, by a certain deed executed by the plaintiff and others to these defendants, the said defendants acquired the right to convey the waters referred to in the complaint from their lands and through the lands of the plaintiff and the other grantors in said deed, a copy of which said deed is attached hereto and made a part of this answer."
(441) This part of the answer, with the deed referred to, and another written agreement, were offered by the plaintiff as evidence on the trial for the purpose of showing the defendants' connection with the ditches. It appears that Mrs. L. A. McGowan is the only defendant remaining in the action. The issues and answers thereto were as follows:
1. Is plaintiff the owner of and in possession of the lands described in the complaint? Yes.
2. Did Mrs. Laura A. McGowan wrongfully and unlawfully divert any water from its natural channel and discharge it upon the land of the plaintiff? No.
3. What damage, if any, has plaintiff sustained by reason of the wrongful diversion of said water? None.
4. What damage, if any, has plaintiff sustained by reason of the wrongful collection of water, and its discharge with greater force and rapidity upon plaintiff's land? None.
The following is all of the charge that appears in the record:
The court instructed the jury as to the different phases of the case and, among other things, charged the jury as follows, to wit: "The owners of lands drained by a watercourse may change and control the natural flow of the surface water thereon, and by ditches and otherwise accelerate the flow or increase the volume of water which reaches the stream; and if he does this in the reasonable use of his own premises he exercises only a legal right and incurs no liability to a lower proprietor. But a landowner can not concentrate and discharge into the *311 stream the surface water of his land in quantities beyond the natural capacity of the watercourse, to the damage of the lower riparian owners.
"Therefore, it being admitted by the plaintiff that Broad Creek and Moye's Run are natural watercourses, and that the water of Cooper, Cannon and Baldwin swamps, or at least a portion thereof, naturally flow into Moye's Run, if you shall find from all the evidence (442) in this case that the lands of said swamps were susceptible of drainage for agricultural purposes, then the defendants had the right to make such canals in these swamps as were necessary to drain them of the water naturally falling thereon, although in so doing the flow of water in Moye's Run was thereby increased and accelerated, and the flow of water was increased on the plaintiff's land, if you shall find that Moye's Run was capable of receiving such increased flow of water and carrying it on toward Tar River."
The Court also charged the jury as follows:
"If you find that the defendants, by means of the Parker's Chapel canal, or otherwise than by means of the canal in Moye's Run, drained as much water from Baldwin's Swamp as they diverted into Moye's Run; if you find that they diverted water from its natural course into Moye's Run, then no damage resulted from such diversion, and you will so find."
(The plaintiff excepted to the foregoing direction to the jury.)
The Court also told the jury that there was no evidence which connected the defendant L. A. McGowan with any diversion of water in Cooper or Cannon swamps, if there was any diversion; and that they could not consider the evidence of the diversion of water in those swamps, but must restrict their inquiries to Baldwin's Swamp.
(The plaintiff duly excepted to this direction of the jury.)
There were several exceptions to the testimony, some of which may be good; but, as they are not very clearly expressed, we will not consider them, as we are compelled to order a new trial for error in the charge of the court.
This case was here before, being reported in
. . . Under this principle the defendants are permitted not to divert but to drain their land, having due regard to their neighbor, (444) provided they do not more than concentrate the water and cause it to flow more rapidly and in greater volume down the natural stream through or by the lands of the plaintiff." We have italicized such words as peculiarly apply to the case as it now stands, which differs only from the former case on appeal in that the issue ofdiversion is clearly raised in the pleadings and proof. The case seems to have been tried upon the theory that the defendant caused ditches to be cut, whereby water was diverted to the land of the plaintiff; but that she claimed the right to do so either from some power in the deed set up in the answer, or some supposed compensation arising from an old ditch which carried off some part of the water that might otherwise help to flood the plaintiff's land. This old ditch, existing from a time whereof the memory of living man runneth not to the contrary, had no connection whatsoever with the ditches cut by the defendant; nor does it appear to have owed either its origin or its maintenance to any act of the defendant. Even if it had, it would not change the principle, which is thus briefly stated inHocutt v. R. R.,
New trial.