Chappell v. Winslow ( 1963 )

129 S.E.2d 101 (1963) 258 N.C. 617

R. S. CHAPPELL et al.
v.
G. H. WINSLOW, Jr., and wife, Evie Winslow.

No. 27.

Supreme Court of North Carolina.

February 1, 1963.

John H. Hall and Worth & Horner, Elizabeth City, for plaintiff appellees.

Leroy, Wells & Shaw, Elizabeth City, for defendant appellants.

SHARP, Justice.

Defendants assign as error the failure of the judge to nonsuit plaintiffs' action. They contend that there is a material and fatal variance between the allegations and proof in that plaintiffs alleged, and sought to enjoin, damage which would result if defendants widened and deepened the north-south highway ditch along the west edge of the Highway; whereas their evidence, and subsequent events, showed that they were attempting to prevent defendants from connecting east-west ditches with the highway ditch. Defendants further contend that they, with the consent of the plaintiffs, were permitted to clean out, widen and deepen the highway ditch the length of their property and that the action is now moot and should be dismissed.

With these contentions we cannot agree. The crux of plaintiffs' complaint is paragraph 5 which follows:

"That defendants, over the protests of plaintiffs, have now begun the digging of a canal parallel to the east side of the lands owned by them and leading southwardly parallel to said Highway 17 to the lands of plaintiffs and purpose to reverse the drainage of the lands of defendants from the west to the east and into the canal now being cut by defendants and turning all of the water therefrom on the lands of plaintiffs."

It is implicit in this evidence, and in the consent order entered on July 20, 1957, that the plaintiffs do not fear any flooding from the natural drainage of defendants' land into the highway ditch. What they fear is the artificial collection of water from defendants' property into ditches which funnel it into the highway ditch to run south onto their property. This the judge restrained—by consent on July 20, 1957, and by final judgment on March 30, 1962.

While the complaint did not specifically ask that the defendant be restrained from opening east-west ditches into the highway canal, within fifteen days after the suit was started defendants themselves agreed not to open such ditches pending the trial. No element of surprise appears. It is the rule with us that the relief to be granted does not depend upon that asked for in the complaint but upon whether the matters alleged and proved entitle the complaining party to the relief granted. Griggs v. York-Shipley, Inc., 229 N.C. 572, 50 S.E.2d 914, 15 A.L.R. 2d 798. The following statement by Chief Justice Merrimon in Presson v. Boone, 108 N.C. 78, 79, 12 S.E. 897, 900, is pertinent here:

"While it is far better and very desirable that the pleadings shall be directly pertinent, precise and orderly, still, when they can be upheld as sufficient, this must be done, if to do so works no injustice to a party. This is the spirit and purpose of the present method of civil procedure." (Italics ours.)

The motions for nonsuit were properly overruled.

At the beginning of the trial the defendants moved to be allowed to amend the answer "to allege that a part of the system of drainage referred to in the complaint and in the answer as ``defendants' system of drainage' had been dammed by a dirt fill by at least one of the plaintiffs and that this damming occurred approximately two weeks ago." The judge denied this motion. The denial was a matter within his discretion and not appealable.

Thereafter the defendants attempted to offer evidence about a fill, presumably the one referred to in the motion although this cannot be ascertained from the motion. The judge excluded the evidence and defendants assign this exclusion as error. They contend the evidence was competent to contradict plaintiffs that their drainage ditches were taxed to capacity because the fill would "to some extent create a flooded condition of plaintiffs' property." (Italics ours.)

The excluded evidence tended to show the following:

The fill in question was in a ditch on the southwest side of the Old Desert Road where it joined the Highway some distance south of the truck stop. The fill had been put there in the first instance by the State Highway Commission and then removed. About two weeks before the trial one of the plaintiffs replaced it. Water was higher on the west side of the fill than on the east.

There appears in the record a temporary restraining order signed by Judge Morris on December 29, 1961 enjoining the plaintiffs from placing any fill in the ditch along the southwest side of the Old Desert Road. This order was returnable on January 12, 1962, but the record does not show what was then done. The effect of the fill is far from clear from the proffered evidence. If the exclusion of this evidence was error, it involved a situation of only two weeks duration immediately preceding the trial, and its exclusion will not upset the trial. The judge who heard the excluded evidence also saw the fill. He ruled the evidence incompetent and, on this record, prejudice does not appear.

Defendants' assignments of error 23 through 36 are to the findings of fact made by the judge. The defendants' discussion of these assignments of error in their brief is as follows:

"It is respectfully submitted that these findings of fact insofar as they support the plaintiffs' position and prejudice the rights of the defendants, are not supported by the evidence, nor any evidence of sufficient probative force to be considered by the court. It is reversible error for the judge to admit and act upon incompetent evidence in finding facts."

As to those assignments, appellants' brief is a "pass brief" such as was condemned in Jones v. Southern R. R., 164 N.C. 392, 80 S.E. 408; Crowell v. Eastern Air Lines, 240 N.C. 20, 31, 81 S.E.2d 178. However, except for an obvious and immaterial error in the date of the preliminary restraining order in finding No. 2, and a likewise immaterial statement in finding No. 4 (which statement is admitted to be true in defendants' brief), all of the judge's findings are supported by competent evidence. These findings are therefore binding on this Court even though there was evidence to the contrary. Cauble v. Bell, 249 N.C. 722, 107 S.E.2d 557.

Plaintiffs offered evidence that sometime prior to July 1957, defendant Winslow told one or more of them that he intended to drain from 250 to 300 acres into the highway ditch. Defendant denied this and testified that he only intended to drain from 185 to 200 acres into the ditch by means of ditches, varying from 2,000 to 4,000 feet in length, spaced about 250 feet apart from ditch No. 5 to his south property line next to plaintiffs. Plaintiffs' evidence tended to show that the highway ditch north of the Road (as well as the other ditches which constituted this drainage system) was already taxed to capacity in wet weather; that after heavy rains, yards and septic tanks were flooded and plumbing facilities would not drain.

The defendants objected to testimony of the plaintiffs, and of others who lived and worked in the vicinity, who were familiar with the drainage system under consideration, that if defendants drained 200 acres of their lands into the highway ditch, this drainage would from time to time cause the ditch to overflow at either end of their property and flood their lands. Over objection, these same witnesses expressed opinions as to the size of the ditch and culverts which would be necessary to carry such additional drainage from the defendants' lands south. Defendants contend that this testimony was incompetent opinion evidence by lay witnesses. We think it was competent as "the evidence of common observers testifying as to the results of their observation." Stansbury, Evidence, Section 125.

The conscientious judge who heard this case lives in the area and was thoroughly familiar with its drainage problems. He made not one but several personal inspections of the properties. Even if some incompetent evidence had been admitted, which we do not decide, his Honor was peculiarly qualified to weigh the evidence and to disregard the incompetent. There is a rebuttable presumption that when the court sits without a jury it acts only on the basis of competent evidence. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668. There is nothing whatever in the record to suggest that incompetent evidence in any way influenced his findings of fact or final judgment.

The defendants concede this well established principle of law: Where two tracts join each other, one being lower than the other, the lower tract is burdened with an easement to receive waters from the upper tract which flow naturally therefrom. The owner of the upper tract may increase the natural flow of water and may accelerate it, but he cannot divert the water to cause it to flow in a lower land in a different manner or in a different place from which it would naturally go. Braswell v. State Highway and Public Works Commission, 250 N.C. 508, 108 S.E.2d 912.

The judge found, upon competent evidence, that the defendants were the upper landowners. He ruled, therefore, that the plaintiffs must receive the waters which flow naturally thereform. The next question was whether the defendants, unless prevented from doing so, would divert water from its natural course so as to cause plaintiffs injury for which they had no adequate remedy at law. The defendants' own testimony and prior acts established this intention.

The judge found that the plaintiffs' drainage facilities were not adequate under existing conditions. If as their evidence tended to show, heavy rains caused flooded septic tanks and made plumbing facilities useless, a hazard to health inevitably resulted. Additional water could only aggravate the existing situation. Such aggravations, recurring with every wet spell, would create a condition which the plaintiffs are entitled to restrain. Wiseman v. Tomrich Constr. Co., 250 N.C. 521, 109 S.E.2d 248. In an action to enjoin one from collecting and discharging surface waters in volume upon plaintiffs' land, it is not necessary for the plaintiff to prove that actual injury has already occurred. The remedy is preventive and may be had upon proof that the act complained of, unless restrained, will result in damage. 56 Am.Jur., Waters, Section 85.

Defendants assigned as error the plan of drainage which his Honor designed for their lands and which, if adopted by defendants, would terminate the injunction. The plaintiffs might have effectively objected to this plan. They did not, and the defendants may not. It was intended for defendants' benefit but they are not required to adopt it. Upon the facts found, the plaintiffs were entitled to the injunction granted.

If the defendants' property is inadequately drained, and they do not care to adopt his Honor's plan to which the plaintiffs assented when they did not appeal, defendants are not without remedy. The provisions of Chapter 156 of the General Statutes are still available.

No error.