Dize Awning & Tent Co. v. City of Winston-Salem

224 S.E.2d 257 (1976) 29 N.C. App. 297

DIZE AWNING AND TENT COMPANY
v.
CITY OF WINSTON-SALEM.

No. 7521SC987.

Court of Appeals of North Carolina.

May 5, 1976.

Deal, Hutchins & Minor, by William Kearns Davis, Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice, by William F. Womble and Roddy M. Ligon, Jr., Winston-Salem, for defendant appellee.

BRITT, Judge.

Did the trial court err in allowing defendant's motion for directed verdict and dismissing the action? We hold that it did not.

First, we respond to plaintiff's argument that the Supreme Court opinion established the law of this case, that plaintiff presented evidence substantially as alleged in its pleadings, therefore, it was entitled to have the jury pass upon its cause. We reject this argument.

The Supreme Court opinion, 271 N.C. page 720, 157 S.E.2d page 580, contains the following paragraph:

"And now, turning to the plaintiff's position, construed most favorably to it, the plaintiff alleges that by the City's action in removing a 36-inch pipe or culvert, which was guarded by the use of covers, grilles, and other protective devices, and replacing it with a larger one, without grilles or other devices to prevent tires and other large debris from entering it, it created a condition that would flood plaintiff's property when they could not be accommodated by plaintiff's smaller culverts. In blocking the plaintiff's culverts they would naturally cause water to pond and flood plaintiff's property, which plaintiff alleged resulted in $75,000 damage." (Emphasis added.)

We think the decision in the former appeal turned on plaintiff's allegations at that time that before the culvert was replaced it was guarded at the east end by grilles and other protective devices, but after the culvert was replaced, defendant failed to reinstall grilles or other protective devices. In its amendment to the complaint, filed on 1 November 1968, subsequent to the Supreme Court decision, plaintiff, among other things, alleged the following: "The plaintiff, in paragraph 9 above, does not intend to allege that any covers or grilles were located at the eastern end of the old culvert under South Main Street . . .."

In view of the quoted amendment, and plaintiff's evidence in conformity therewith, we think our present position in applying the law to the instant case is different from the position confronting the Supreme Court on the former appeal.

The law appears well settled in this jurisdiction: each of the lower parcels of land along natural drainways is servient to those on the higher level in that each is required to receive and allow the unimpeded passage of surface water from the higher level. Midgett v. Hwy. Comm'n, 260 N.C. 241, 132 S.E.2d 599 (1963); J. Webster, Real Estate Law in North Carolina § 320 (1971). This is the civil law rule long prevailing in this State. Davis v. Cahoon, 5 N.C.App. 46, 168 S.E.2d 70 (1969), cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). See, cf., 1A G. Thompson, Commentaries on Modern Law of Real Property, § 266 (1964) (common law rule). Less emphasis is placed on the existence of well defined surface channels than on a treatment of surface water as a resource. It is designed to maximize the beneficial usage of such waters. As stated by our Supreme Court in an early decision:

". . . 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." Mizell v. McGowan, 120 N.C. 134, 137, 26 S.E. 783, 784 (1896).

A second rule is that one property owner may not divert water or cause it to flow onto the land of another in a manner different from the natural course in which it would normally flow, so as to injure the other owner's land. Should a lower landowner divert, dam or impound the natural flow of surface waters so as to cast them back upon and damage the upper landowner, then he may be subject to liability in an action for damages. Braswell v. Hwy. Comm'n, 250 N.C. 508, 108 S.E.2d 912 (1959).

This is subject to a corollary, that while the landowner may not divert surface waters from their natural course, he may accelerate and increase the flow of such water from his lands, provided the course remains unchanged. Thus surface waters may be drained into a natural drainway without liability to lower property owners for damage caused to lands along the lower drainway as a result of increased flow of a natural stream. Barcliff v. R. R., 168 N.C. 268, 84 S.E. 290 (1915).

We feel that these principles, applied to plaintiff's evidence thoroughly substantiate the trial judge's decision to grant defendant's motion for directed verdict. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). See generally, W. Shuford, North Carolina Practice and Procedure § 50-10 (1975). At no point during plaintiff's sixty odd years of occupation and ownership did the city ever maintain more than a mere culvert. This was a valid exercise of the municipal police power, authorized under present G.S. 160A-297 and G.S. 160A-311 et seq. See e. g., former G.S. 160-222 (1964), repealed N.C. Session Laws c. 698, s. 2 (1971). During this same period plaintiff sought to encase or reroute the course and flow of South Creek. Defendant acted only to increase or accelerate the volume and flow of water under its street, obviously in order to alleviate flooding endangering property owners east of South Main Street. At no point did defendant ever divert the course of South Creek to the detriment of lower property owners, including plaintiff.

That defendant selected a design choice for construction of a replacement culvert, which exposed the inadequacy of plaintiff's private drain system for coping with increased flow from the South Creek watershed is no basis upon which to impose liability on defendant. Given a number of alternatives from which to choose, and without more than plaintiff's evidence of negligence, the judiciary will not question or second guess the wisdom of local municipal officials in selecting or not selecting a particular design rather than one of those posited by plaintiff's expert at trial. State v. Stowe, 190 N.C. 79, 128 S.E. 481 (1925); Clark's v. West, 268 N.C. 527, 151 S.E.2d 5 (1966); State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974). See generally, 6 E. McQuillin, Municipal Corporations §§ 24.02, 24.30 (3d rev. ed. 1969). Plaintiff has failed to come forward with any evidence from which to infer either abuse of discretion or an invalid exercise of municipal police power. So long as defendant's conduct remained within bounds of its right to accelerate or increase rate of flow under the easement of servitude, there is no basis for negligence liability.

For the reasons stated, the judgment appealed from is

Affirmed.

PARKER and CLARK, JJ., concur.