43 S.E. 578 | N.C. | 1903
This is an action to recover damages for alleged injury to the plaintiff's land by the defendant throwing mud, sand, and water thereon, and further flooding it by filling up the sweat and lead ditch which was necessary for its proper drainage.
This is one of a series of cases arising out of injuries inflicted upon abutting landowners by the defendant in deepening and widening its canal in 1898 and 1899. It is identical in principle and practically so in its essential facts with the cases of Mullen v. Canal Co.,
The issue was as follows: "Did the defendant company negligently and wrongfully damage and injure the plaintiff's property, as alleged in the complaint?" Answered, "Yes." The second issue was the amount of permanent damages. There was no exception to the issue, and no additional issues were tendered. As it was agreeable to the parties, we see no reason to object to the inclusion of all forms of injury arising from the same work under the same issue.
The defendant contends that it is not liable unless the work was done negligently; but one is just as liable for doing an unlawful act as for negligently doing a lawful act, and of both there was ample evidence. Piling large quantities of mud and sand upon the banks of the canal, without providing means to prevent its flowing upon the plaintiff's land, was negligence; while throwing mud and sand directly upon the plaintiff's land was an unlawful act, which no amount of skill could justify. When a man's house is blocked up by a pile of mud ten feet high, the mere fact that the mud was skillfully piled helps neither his damaged building nor his wounded feelings. A man may lawfully pull down his chimney and pile the brick on top of his house, but he must pile them so that they will remain there. He cannot lawfully throw them together so carelessly that they fall off and injure some one passing in the street below. Still less could he throw them directly into the street regardless of injury to others.
The defendant contends in argument that it was organized under a public act of which this Court will take judicial notice, and by which its easement will be shown. It says further in its brief: "This canal, of which it is said that General Washington was a chief promoter, is a matter of public history in North Carolina, and does not derive its corporate existence by an ordinary charter. It will appear from (127) section 19 (page 225, 2 Rev. Stats.) that it was the result of a *93 compact between two sovereign States concerning a great interstate public improvement, and which the two States declared should be a `public highway' (section 9, p. 221) between the two States." If these concurrent charters are public laws entitled to judicial notice, which we doubt, they cannot avail the defendant. The complaint alleges that the defendant is a corporation organized under the laws of Virginia, and this is admitted in the answer. It is true, the complaint further says that the defendant owns the canal property formerly known as the "Dismal Swamp Canal," but there is no allegation in either pleading connecting the defendant with the franchises granted to the Dismal Swamp Canal Company by the interstate compact of 1790, or those granted to the Northwest River Company by the concurrent acts or compact of 1825. By express stipulation, these compacts were irrevocable without the consent of both States, and it does not appear that the State of North Carolina has ever consented to the transfer of such franchises to a purely Virginia corporation, such as the "Lake Drummond Canal and Water Company," the defendant in this action, appears to be. However, if we go back to the act of 1790 and 1792, we find nothing tending to show the extent of the right of way actually obtained by the defendant or its predecessor. Section 10 of the act of 1790 provides that the Dismal Swamp Canal Company may, on failure to agree with the owner of the land, condemn a right of way "not exceeding the width of 300 feet." We have no evidence whatever, in or out of the record, tending to show what amount of land was actually condemned, if any. Hence, we can only repeat what we said in Mullen v. Canal Co.,
Affirmed.
Cited: S. c., post, 180; Norris v. Canal Co., post, 183; Edney v. CanalCo., post, 184; Cherry v. Canal Co.,