Barcliff v. Norfolk-Southern R. Co.

• Decision Date: 11 September 1918
• Docket Number: 15.
• Citation: 96 S.E. 644,176 N.C. 39
• Parties: BARCLIFF v. NORFOLK-SOUTHERN R. CO.
• Court: North Carolina Supreme Court

96 S.E. 644

176 N.C. 39

BARCLIFF v. NORFOLK-SOUTHERN R. CO.

No. 15.

Supreme Court of North Carolina

September 11, 1918

Appeal from Superior Court, Pasquotank County; Bond, Judge.

Action by R. C. Barcliff against the Norfolk-Southern Railroad Company. Judgment for defendant, and plaintiff appeals. No error.

A recovery of permanent damages, in an action for injury from the diversion of surface water and the ponding of it on plaintiff's land, confers an easement as in the case of condemnation to continue the particular injury for which the damages were recovered and paid.

This case was here before, and is reported in 168 N.C. 268, 84 S.E. 290. The action was brought to recover damages for injuries caused by diverting surface water and ponding it on plaintiff's land. The former action was for the same cause, the only difference between the two being the allegation in this action that, since the former verdict and judgment for permanent damages, at November term, 1914, the defendant, in the year 1915, widened and deepened the ditch or drain flowing through its culvert, and thereby caused additional damage to the plaintiff's land and crops; but this allegation the jury found was not true. The verdict was as follows:

"(1) Is plaintiff the owner of the land described in the complaint? Answer: Yes.

(2) Has the defendant wrongfully diverted and discharged the water on the lands of the plaintiff as alleged by deepening or widening ditch referred to? Answer: No."

The other four issues related to the damages and were not answered, as the second issue had been decided against the plaintiff. Judgment was entered on the verdict, and plaintiff appealed.

T. J Markham and Aydlett, Simpson & Sawyer, all of Elizabeth City for appellant.

C. E Thompson, of Elizabeth City, for appellee.

WALKER J. (after stating the facts as above).

The verdict of the jury shows that there has been no change in the facts since the former judgment was rendered; that is, no additional cause of damage. Assuming that this is not a case in which permanent damages could be assessed without the consent of the plaintiff, it appears that in the first case he deliberately amended his complaint for the purpose of having such damages assessed, and he having thus made his election, which was entirely voluntary, and the case having been tried on that theory, and a judgment for permanent damages--that is, all damages past, present, and prospective--having been recovered, he will not now be heard to say that it was all wrong, and that, while he has received the full amount of damages assessed by the jury upon the basis chosen by himself, he should not be bound by his act. This would not do, as it would be manifestly unjust, and contrary to all principles by which we judge the conduct of men. He cannot accept the benefit of his selection and, at the same time, repudiate the consequences.

This court held, in Barcliff v. Railroad Co., 168 N.C. 268, 84 S.E. 290, that permanent damages were recoverable, which was approved later in Barcliff v. Railroad, 175 N.C. 114, 95 S.E. 39, citing Revisal, § 394(2); Ridley v. Railroad Co., 118 N.C. 996, 24 S.E. 730, 32 L. R. A. 708; Stack v. Railroad Co., 139 N.C. 366, 51 S.E. 1024; Beasley v. Railroad Co., 147 N.C. 362, 61 S.E. 453; Porter v. Railroad Co., 148 N.C. 563, 62 S.E. 741; Duvall v. Railroad, 161 N.C. 448, 77 S.E. 311; Perry v. Railroad Co., 171 N.C. 38, 87 S.E. 948. The jury, in this case, have found as a fact that the ditch or drain has not been changed in any respect that would cause additional damage. It is of the same dimensions now as then, and for any injury resulting from the fill and drain, in its condition at that time, the plaintiff has in the assessment of the jury received his actual damages for all time, and he cannot be permitted to recover any part of it again. No man should be twice vexed for the same cause. The plaintiff may carve out as much as the law allows him in the first instance, but he will not be permitted to cut more than once. Eller v. Railroad Co., 140 N.C. 140, 52 S.E. 305, 3 L. R. A. (N. S.) 225, 6 Ann. Cas. 46; State v. Hankins, 136 N.C. 621, 48 S.E. 593. Even where the rule, or the statute, as to permanent damages (Revisal, § 394 [[2]), does not, perhaps, apply, this court said in Brown v. Chemical Co., 165 N.C. 421, 81 S.E. 463: "While the plaintiff may not have been permitted, in this instance, to sue for permanent damages as a matter of right, the parties have the undoubted privilege of determining the case on that theory if they so elect. It is one usually sought by defendant in order to protect himself from the cost and harassments of repeated suits and to acquire the right of conducting his business by designated methods, and, where both parties have elected to have their rights determined on such an issue, it is not open to them, in the discretion of either, to change front and insist on a different method." Webb v. Chemical Co., 170 N.C. 665, 87 S.E. 633, L. R. A. 1916E, 971; Woods, Mayne on Damages, § 110.

But the parties had the right to the assessment of permanent damages in the former suit. Beach v. Railroad, 120 N.C. 498, 26 S.E. 703; Hocutt v. Railroad, 124 N.C. 214, 32 S.E. 681; Lassiter v. Railroad, 126 N.C. 509, 36 S.E. 48; Geer v. Water Co., 127 N.C. 349, 37 S.E. 474; Caveness v. Railroad, 172 N.C. 305, 90 S.E. 244. Such an assessment confers an easement, as in the case of condemnation, to continue the particular injury for which the damages were recovered and paid by the defendant. Ridley v. Railroad, 118 N.C. 996, 24 S.E. 730, 32 L. R. A. 708; Rhodes v. Durham, 165 N.C. 679, 81 S.E. 938; Brown v. Power Co., 140 N.C. 333, 52 S.E. 954, 3 L. R. A. (N. S.) 912; Webb v. Chemical Co., 170 N.C. 665, 87 S.E. 633, L. R. A. 1916E, 971; Porter v. Railroad, 148 N.C. 563, 62 S.E. 741. So it was held in Murphy v. Matthews, 43 Pa. Super. Ct. 286:

"Where a landowner brings suit against another to recover damages for the diversion of the water of a stream, and recovers a judgment based upon evidence of the difference in value of the land before and after the trespass, and the judgment has been paid, such landowner cannot maintain an action several years afterwards

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