Brown v. Carolina Cent. Ry. Co.

• Decision Date: 30 June 1880
• Citation: 83 N.C. 128
• Court: North Carolina Supreme Court
• Parties: JOHN BROWN v. CAROLINA CENTRAL RAILWAY COMPANY.

83 N.C. 128

JOHN BROWN

v.CAROLINA CENTRAL RAILWAY COMPANY.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION removed from Cleaveland and tried at Fall Term, 1879, of LINCOLN Superior Court, before Buxton, J.

The plaintiff alleges that the Wilmington, Charlotte and Rutherford railroad company (now the Carolina Central) by the unskilful construction of a trestle and falling in of a culvert across Muddy Fork creek, just below his lands situate on both sides of the creek, caused an obstruction to the natural flow of the water in said creek, whereby it was thrown back and ponded on his land, and the same was rendered unfit for cultivation; that defendant company thereafter, to wit, in April, 1873, became the owner of said railroad with all its rights, property and privileges, and as such have maintained and allowed to exist ever since their purchase the same trestle and obstruction in said creek and thereby continued the injury to plaintiff's land.

The action is brought to recover damages for injury to plaintiff's land from overflow and absorption occasioned by the said obstruction allowed by defendants to continue in the creek since their purchase, and for abatement of the nuisance. At the trial, it was admitted that the ownership of defendant company began in 1873, and that their said road was duly placed in the hands of the defendants, Grainger, Stout and Porter, as receivers, on the first day of April, 1876, by a decree of the superior court of New Hanover county, under whose control and management the same has ever since been, and is now. Upon issues submitted to the jury, it was found that the trestle and fallen culvert were an obstruction to the natural flow of the water when the defendant company bought the road, and had continued to be and remain ever since, and that thereby the plaintiff sustained an annual damage of twenty-five dollars.

Upon the admission of the parties and facts found by the jury as above, the court adjudged that plaintiff recover damages for three years next before the institution of his suit, to wit, the sum of seventy-five dollars, but refused the motion for the further judgment of abatement of the nuisance, and from such refusal the plaintiff appealed.

Messrs. Hoke & Hoke, for plaintiff .

Mr. John D. Shaw, for defendant .

DILLARD, J.

In Raleigh & Augusta Air-Line v. Wicker, 74 N. C., 220, it is decided that in cases of ponding water by a railroad by obstructing a natural or artificial drain-way, the injury is not one taken into the estimate in measuring compensation to a land owner, and therefore the company in constructing its road must leave a space sufficient for the passage of the water without injurious obstruction; or in default thereof it will be answerable in damages by a repetition of suits until the obstruction is removed, or in a proper case it may be abated by the corrective powers of a court of equity.

So it was the duty of the company which originally built the trestle and culvert across Muddy Fork creek to have erected them with such care and skill as not to obstruct or throw back the water on plaintiff's land and to have kept them so, and equally incumbent on the defendant company since their purchase to do the same thing; or failing so to do, it was responsible for any consequent injury in one or more actions for damages merely, or be subject to abatement if the injury were such as to call for such remedy, consistently with the...