62 S.E. 1083 | N.C. | 1908
Action against defendants for obstructing plaintiff's use of water from Rocky Creek to aid in running his mill, and counterclaim pleaded because plaintiff, by raising his dam, had water sobbed the land of defendant. The jury gave each side a verdict for $100.
The lands of the plaintiff and defendant formerly belonged to William Anderson. Hunting Creek and Rocky Creek both flowed through the lands of William Anderson. Upon the bank of Hunting Creek William Anderson built a mill.
Rocky Creek by its natural course ran into Hunting Creek about 100 yards below the mill, and naturally the water of Rocky Creek furnished no additional power to Anderson's mill. Anderson being the owner of the land, conceived the idea of increasing the power of his mill by cutting an artificial channel from Rocky Creek into the head of his mill pond on Hunting Creek. This channel was cut over the land which afterwards became lot No. 4, in the partition proceedings, and fell to the defendants.
After cutting this channel, it was necessary to keep a little dam or obstruction in Rocky Creek at the mouth of the channel in order to divert the water from its natural flow. William Anderson had the right, of course, to construct this channel, and to keep it in repair, and use the water for the purpose of increasing the power of his mill. During the remainder of his lifetime he used the channel for thus conveying water whenever needed. At his death a partition proceeding was filed by his heirs at law for a division of his lands.
The commissioners went upon the premises and divided his (290) lands into nine parts. This mill being situated upon the lands, *213 in making a division, its value was considered. The mill without the waterpower, would be of very little value. It stood upon lot No. 9 owned by plaintiff, as to which the allotment provided, "so as to include the full power of the mill shoal and waterpower on both sides of the mill pond, so as to keep it in repair and convey water to the mill." From the verdict and judgment the defendant appealed. His Honor charged the jury: "It is conceded by both parties that William Anderson owned the lands in controversy, and that partition was had between his heirs, to one of whom section 9 was assigned, including the mill on Hunting Creek, and without giving a description of the land assigned it to C.L. Anderson. This provision is added to the general description: `So as to include full power of the mill shoal and waterpower on both sides of the mill pond, so as to keep it in repair to convey water to the mill.' If you find from the evidence, by its greater weight, that at the time the partition was had, and therefore while William Anderson was the owner of all the lands set out in the partition proceedings, and the owner of the mill, that water was brought from Rocky Creek into the mill pond as a part of the waterpower necessary for running the mill, that the waterpower was included in the partition proceedings and assigned to C.L. Anderson, who was to be the owner of section No. 9, and if you should so find, then you will inquire whether the defendant has diverted the water from the course so as to lessen the waterpower used by Anderson, and in contemplation of the commissioners at the time they made the partition."
The defendant excepted, but we find no error. The jury found (291) that the defendant had wrongfully diverted the water, and wrongfully refused to allow the plaintiff to convey the water from Rocky Creek, to his damage $100, and that the plaintiff had maintained his dam at a height greater than the mill dam was at the time of the partition, thus overflowing and sobbing defendant's land to his damage $100. The court thereupon adjudged that"the plaintiff is entitled to the use of the same amount of water as was usual to run through the artificial channel from Rocky Creek to the head of the mill pond of plaintiff, when a dam or obstruction was in the creek at the head of the channel, at or prior to the date of the partition of the lands of William Anderson, and such amount of water as was used by the said William Anderson, and the plaintiff shall have a right to enter upon the lands of the defendant for the purpose of keeping open the artificial channel used for diverting water from Rocky Creek to the mill pond, and also for the *214 purpose of keeping such dam or obstruction in the creek as will cause the water to flow through the artificial channel in such quantity as was used by William Anderson during his lifetime, for the purpose of furnishing power to the mill. It is further ordered and adjudged by the court that the plaintiff recover of the defendant the sum of one hundred dollars for damages for the wrongful diverting of the water from the mill pond of the plaintiff's mill. It is further considered and adjudged by the court, that the jury having found that the plaintiff is maintaining his dam in excess of what it was at the date of the partition proceedings, and that by reason of said dam being raised and so maintained the land of the defendant has been sobbed, it is therefore considered and adjudged by the court that the defendant recover of the plaintiff the sum of one hundred dollars for all damage — past, present and prospective, by reason of the raising of the dam to its present height, both parties consenting that the amount named should be for all damages. (292) It is further considered and adjudged by the court that the plaintiff recover cost of the defendant in his action."
The defendants except, because the jury did not find how much water from Rocky Creek William Anderson was accustomed to use, but they submitted no issues or prayers on that subject. The contest was whether the plaintiff had an easement to use the water as William Anderson had done. There was no demand to more particularly specify its extent. The easement was to use enough water from Rocky Creek, added to that from Hunting Creek, to "included the full power of the mill shoal and waterpower on both sides of the mill pond" at the height of the dam when the mill was used by William Anderson, and now by this verdict, and with the consent of parties as expressed in the judgment, the "full power" is what is required to run the mill with the dam at its present height. If the plaintiff should seek to use more water from Rocky Creek than is reasonably necessary, and shall waste it by running it over his dam, the defendant by proper proceedings can have the extent of the easement more accurately measured and defined, unless the parties by themselves, or by friendly arbitration, shall agree upon what is an adequate but not excessive enjoyment of the easement, which they should be able to do, now that the legal questions involved are determined.
No error. *215
(293)
