Davis v. Cahoon , 5 N.C. App. 46 ( 1969 )

168 S.E.2d 70 (1969) 5 N.C. App. 46

George T. DAVIS and wife, Alma Lee C. Davis
v.
Carl M. CAHOON and wife, Celia G. Cahoon.

No. 692SC105.

Court of Appeals of North Carolina.

June 18, 1969. Certiorari Denied August 29, 1969.

John H. Hall and Gerald F. White, Elizabeth City, for plaintiff appellants.

John A. Wilkinson, Washington, for defendant appellees.

MORRIS, Judge.

This case involves the application of rules relating to the reciprocal rights and duties of upper and lower landowners with respect to the flow or course of surface waters.

Generally, there are two well-defined and recognized rules with respect to the right of a lower proprietor to obstruct and repel surface water draining from the land of a higher proprietor. One is the common law rule frequently referred to as the "common enemy" doctrine. Under this doctrine, each landowner may take whatever steps he pleases to dispose of surface water. No natural easement or servitude exists in favor of the higher land for the drainage of surface water, and the proprietor of the lower land may lawfully obstruct or hinder the flow of surface water on his land and may turn it back or away from his own land and onto and over other lands without liability for any adverse consequences suffered by reason of such obstruction or diversion. 56 Am.Jur., Waters, § 69; 59 A.L.R.2d 423.

Diametrically opposed to this rule is the civil law rule which is the rule prevailing in this jurisdiction. In Mizell v. McGowan, 120 N.C. 134, 137-138, 26 S.E. 783, 784, the Court said:

"The surface of the earth is naturally uneven, with inequality of elevation. The upper and lower holdings are taken with a knowledge of these natural conditions, and the privilege or easement of the upper tenant to carry off the surface water in its natural course, under reasonable limitations, and the subserviency of the lower tenant to this easement, are the natural incidents to the ownership of the soil. The lower surface is doomed by nature to bear this servitude to the superior, and must receive the water that falls on and flows from the latter. The servient tenant cannot complain of this, because ``aqua currit et debet currere ut solebat.'

The upper owner cannot divert and throw water on his neighbor, nor the latter back water on the other, with impunity. ``Sic utere tuo ut alienum non laedas.'" (Emphasis added.)

See also Mizell v. McGowan, 125 N.C. 439, 34 S.E. 538, and Mizell v. McGowan, 129 N.C. 93, 39 S.E. 729.

In Midgett v. North Carolina State Highway Commission, 260 N.C. 241, 132 S.E.2d 599, the Court noted that North Carolina has not recognized and does not apply the common enemy doctrine but follows the civil law rule. The opinion contains a scholarly discussion of the two rules, noting that the civil law rule of this jurisdiction places less emphasis on the existence of well-defined watercourses than does the common enemy doctrine.

"Our rule embraces surface waters flowing and draining naturally from a higher to a lower level, and is stated thus: The law confers on the owner of each upper estate an easement or servitude in the lower estates for the drainage of surface water flowing in its natural course and manner without obstruction or interruption by the owners of the lower estates to the detriment or injury of the upper estates. Each of the lower parcels along the drainway is servient to those on higher levels in the sense that each is required to receive and allow passage of the natural flow of surface water from higher land. Johnson v. City of Winston-Salem, supra [239 N.C. 697, 81 S.E.2d 153, 44 A.L.R.2d 949]." Midgett v. Highway Commission, supra, at p. 246, 132 S.E.2d, at p. 605.

Defendants concede that they cannot with impunity divert the flow of surface water from its natural course—here West One—by dam, dike or otherwise, but they contend that another well-known principle is applicable. Defendants earnestly contend that they have done only what they have a right to do, i. e.: increase or accelerate the natural flow of water. The right to accelerate the flow has long been recognized in this jurisdiction.

"Whether water has been diverted is an issue of fact for the jury, while the effect of such diversion is a question of law for the court. The rule has become too well established in this State to need further discussion. It has been generally stated in the following words: ``Neither a corporation nor an individual can divert water from its natural course so as to damage another. They may increase and accelerate, but not divert.' Hocutt v. Wilmington & W. R. R., 124 N.C. 214, 32 S.E. 681; Mizell v. McGowan, 125 N.C. 439, 34 S.E. 538; Id., 129 N.C. 93, 39 S.E. 729; Lassiter v. Norfolk & C. R. R., 126 N.C. 509, 36 S.E. 48; Mullen v. Lake Drummond Canal & Water Co., 130 N.C. 496, 41 S.E. 1027, 61 L.R.A. 833." Rice v. Norfolk & C. R. R., 130 N. C. 375, 41 S.E. 1031.

While defendants do not concede that the natural drainage is always north to south, it appears that all parties regard West One as a natural watercourse for the drainage of Tracts Nos. 1 through 6. Defendants argue in their brief that who is the upper and lower proprietor is not always the same because when the water in the sound is low, the drainage is from north to south; that the direction of the drainage depends on which way the wind is blowing.

In Johnson v. City of Winston-Salem, 239 N.C. 697, 81 S.E.2d 153, 44 A.L.R.2d 949, plaintiff was the lower proprietor and brought an action to recover for flood damage to personal property located in the basement of their home due to the negligence of the individual defendant Harper, an upper proprietor, in failing to keep in proper repair a large subsurface drain pipe running under his property. Harper's predecessor in title had extended through his property when he acquired it the artificial drain, using 24-inch pipe, the same size used by upper landowners in bringing the drain to Harper's property. Harper bought with knowledge of the existence of the drain. There was a manhole just a few feet from plaintiff's residence. A hole developed over the underground drain and dirt and debris started going into the drain. Harper erected a fence around the hole, but did nothing to repair the drain. Facts: During a heavy rain the manhole just below plaintiff's property overflowed by reason of the fact that it became stopped up by a large piece of terra-cotta pipe which washed down the pipe into the manhole and lodged against the outfall side of the manhole. This caused the water to gush out of the manhole in great volume and with great force, forcing the lid off the manhole, and flooding the space between the manhole and plaintiff's house. Water poured into plaintiff's basement through two ground level windows, completely filling the basement and doing considerable damage to plaintiff's personal property stored therein. At the close of plaintiff's evidence, motion of individual defendant Harper for judgment as of involuntary nonsuit was sustained, a voluntary nonsuit having been taken as to the City of Winston-Salem, and plaintiff appealed. In reversing the trial court, the Supreme Court said:

"The then owner of the Harper property, located as it was in an intermediate position along the course of this drainway, was both a dominent and a servient proprietor. As servient to the upper proprietors, he was not permitted by law to interrupt or prevent the natural passage of waters, to their detriment. And conversely, as the owner of an estate dominant to the lower tenements, he was required, under pain of incurring actionable liability, to refrain from interfering with the natural flow of waters by artificial obstruction or device, to the detriment or injury of the lower tenements. Phillips v. Chesson, supra [231 N.C. 566, 58 S.E.2d 343]; Supervisor and Commissioners of Pickens County v. Jennings, 181 N.C. 393, 107 S.E. 312; Farnham, Waters and Water Rights, Sec. 889d."

While the principles of law are well defined, attempted application to the varying circumstances and facts is frequently fraught with difficulty.

Plaintiffs' evidence, considered in the light most favorable to plaintiffs and accepting the evidence so construed as true, as we are bound to do in reviewing a judgment of nonsuit, Boyd v. Blake, 1 N.C. App. 20, 159 S.E.2d 256, tends to show:

The natural flow of water on Tracts Nos. 1 through 6 is from north to south by virtue of the difference in elevation. The southeastern portion of defendants' tract (No. 6), where the pumping system is located, is lower in elevation than the remaining portion of Tract No. 6. Prior to 1965, defendants' lateral field ditches emptied into West One. When they were changed, they were blocked off from the West One. The canal was dredged out with mosquito control money and the dirt which was removed from the canal was placed on the west bank of West One and formed a dike three or four feet high. Defendants were then the owners of Tract No. 6. The North-South Canal was constructed by defendants on Tract No. 6 and the East-West Canal was constructed enptying into West One from the North-South Canal. The East-West Canal is now the only outlet that Tract No. 6 has to the West One. Defendants installed a pump to pump water from their North-South Canal through the East-West Canal into the West One. The tile in the west end of the East-West Canal is 18 inches in diameter. The pump is just small enough to go in the west end of that pipe and is between a 14-inch and 16-inch pump. The pump is powered by a farm tractor with a power take-off connection. The natural flow of waters from all six tracts is from north to south and the natural flow of waters in West One is north to south. When the pump was in operation, and the floodgates at the south end of Tract No. 6 are closed, the water in West One flowed south to north, raised the water level in the lateral ditches in plaintiffs' land, and caused the ditches to overflow on plaintiffs' land. When the pump was in operation, water would be discharged from the East-West Canal into West One with such force that it went across and hit the east bank of the West One causing it to act as a dike or dam in the West One thereby obstructing the natural flow of water in West One, causing the waters to back up in plaintiffs' ditches and overflow on the cultivated land. Plaintiffs were told by male defendant that he was pumping water from his land and would continue to do so until made to stop by the court. Plaintiffs in 1967 had increased the number of lateral ditches in their field and had installed a floodgate in West One adjacent to their tract to prevent the flooding of their land from the pumping operation. The level of water in the sound is governed by "wind, storm tides, and rain waters coming into the sound from rivers". West One is about six to eight feet wide at its beginning at Highway No. 264 and gradually increases in width to between 14 and 18 feet at the floodgates. It is eight to ten feet in width at the south end of Tract No. 1. From the southern end of Tract No. 1 down to where the pump was installed is a little more than a mile.

We are of the opinion, and so hold, that plaintiffs' evidence was sufficient to show that defendants had willfully constructed and operated a drainage system which, in its operation, created an obstruction to the natural flow of water in West One, causing surface waters from all six tracts to back up and flood plaintiffs' lands. Credibility of the evidence is, of course, for the jury.

New trial.

CAMPBELL and BRITT, JJ., concur.