Adams v. Durham & N. R. Co

• Decision Date: 05 April 1892
• Citation: 14 S.E. 857,110 N.C. 325
• Court: North Carolina Supreme Court
• Parties: Adams v. Durham & N. R. Co.

14 S.E. 857

110 N.C. 325

Adams

v.Durham & N. R. Co.

Supreme Court of North Carolina.

April 5, 1892.

Railroad Companies — Diversion of Waters— Overflow—Damages.

1. Where, in the construction of a railroad, a stream is turned from its natural course, and made to pass under the track in the channel of another stream, merely for the purpose of diminishing expense, the company will be liable in damages for overflow caused thereby above the point of original intersection of the streams, as well below as above the track, though the waterway under the track furnished ample room for the passage of the water in time of freshet.

2. In such case, the cause of the overflow be-ng one that is removable, the measure of dam ages is not the difference in the market value of the land, but the difference in value of its productiveness.

Appeal from superior court, Granville county; E. T. Boykin, Judge.

Action by W. T. Adams against the Durham & Northern Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by Avery, J.:

This was a civil action brought to recover damages for overflow alleged to have been caused by turning a running stream into the channel of another, while constructing the road, so as to make both pass through a single water-way. The plaintiff and his wife had joined in a conveyance of the right of way for a certain distance on either side of the center of the railrcad track. The plaintiff introduced evidence that, by reason of the turning of two streams of water, one called "Adam's Branch, " and the other "Fleming's Branch, " into one, his land on both sides of the road was flooded and damaged. The plaintiff further showed that in clearing off the right of way certain logs and bushes were thrown by the defendant in Adam's branch, and the cost of clearing them out amounted to $40. The plaintiff did not introduce any evidence that the said railroad was negligently constructed, or that, in prudent and careful railroad construction, it was not proper to cause the two branches to flow together, or that the trestle was not large enough to carry off the water. It was admitted that all the land of the plaintiff alleged to have been damaged was, before the railroad was built, in one tract. Inestimating the damage, all of the plaintiff's evidence was as to the damage done to the entire tract, and there was no evidence introduced as to the damage done to each separate tract, except the cost of cleaning the logs, etc., from Adam's branch. The defendant introduced its charter in evidence, and also the deed for the right of way over this land. William Moncure, a witness for the defendant, among other things testified that he is by profession a civil engineer, and was superintendent of the defendant's road, and had been engaged in constructing and working on railroads for 11 years; that the road of the defendant over the land of the plaintiff is well and skillfully constructed, and the trestle is amply sufficient to carry off the water; that this trestle is 75 feet long: that water-ways under the banks of railroads are always points of danger, as washouts are more likely to occur at these places than elsewhere; that in the construction of railroads it is always the custom of prudent engineers to make one water-way instead of two when it is practicable to do so; that in trestles there is always more or less danger of the abutments washing out, and these abutments have to be constantly and carefully watched: that it was possible at this place to have made two trestles, but the road would not have been as cheaply and safely constructed with two trestles as in the manner in which it was constructed. This witness further testified that he made the map hereto attachedand marked "Exhibit B, " and that the same is correct; that the difference in the level between the top of the water at the trestle and point D on the map is 8.15 feet higher at D; that between point D and the trestle the land is not clear; that the difference in level between the water and the trestle and the edge of the right of way on Adam's branch is.07 of a foot, which is a sufficient fall to carry off the water; that, in view of these levels it is impossible for any obstruction at the trestle to pond water above the trestle in its present condition. This witness fur ther testified that, as soon as he heard that Adam's branch was obstructed by brush, etc., he directed that the same should be cleaned out by the section force, which was done. The defendant also in-troduced evidence that the land between D on the map and the trestle was, before the road was built, and is now, a low, wet, swampy place, and was unclean and unfit for cultivation, and that Adam's branch In this swamp was always partially obstructed with logs, brush, etc. The defendant asked the court to charge the jury as follows: "(1) That, upon the whole evidence, there was no evidence of negligence in the construction of the road, and that the plaintiff was only entitled to recover the cost of cleaning out Adam's branch." This was refused, and defendant excepted. "(2) That if the jury should believe from the evidence that the defendant had purchased and paid for the right of way over this land, and that turning these two branches together was the proper and prudent manner of constructing said road, then that any damages which accrued from the proper and prudent construction of the road in the usual manner were included in the price paid for the right of way, and the plaintiff in this action could only recover the cost of cleaning out Adam's branch." This was refused, and the defendant excepted. "(3) That as the defendant had the right, under its charter, to construct the road, the plaintiff cannot recover unless he shows that the work was negligently done, or that he was damaged by some act of the road not necessary for its safe and prudent construction, and in this case there is no evidence of any negligence or useless damage, except in allowing Adam's branch to be filled with logs." This was refused, and the defendant excepted. "(4) That the measure of damage for the injury done to the land above the road by reason of the obstructions allowed to accumulate in Adam's branch is the cost of cleaning out such obstruction placed there by the defendant." This was refused, and the defendant excepted. His honor charged the jury that there was no negligence in the construction of the road as regards the land lying below the road-bed, and in arriving at their verdict they would not allow any damages for injury done this land; that if the jury believed that there was...