Bruton v. Carolina Power & Light Co.
| Decision Date | 02 February 1940 |
| Docket Number | 600. |
| Citation | 6 S.E.2d 822,217 N.C. 1 |
| Parties | BRUTON et al. v. CAROLINA POWER & LIGHT CO. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
This is a civil action instituted by the plaintiffs, lower riparian owners, against the defendant, an upper riparian owner, to recover damages alleged to have been caused by certain negligent and wrongful acts of the defendant.
The defendant has constructed a concrete dam across Yadkin River and has erected a hydro-electric generating plant adjacent to said dam, the dam and plant being known as the Tillery Hydro-Electric Generating Station. The defendant, as a public utility corporation, has been operating said plant since 1928 for the generation of electricity for distribution and sale.
Prior to his death, James A. Leak was the owner of 1350 acres of land on the east side of Pee Dee (Yadkin) River and the islands therein formed by the thoroughfare of said river which lands are located approximately six miles below the Tillery Dam and between the Tillery Dam and the Blewett Falls Dam.
During his lifetime and after the construction of the Tillery Dam on 1 August, 1929, the said James A. Leak instituted an action against the defendant for damages on two causes of action set out in his complaint. The first cause of action was bottomed upon allegations that the defendant, during a period of freshet, negligently and without warning, suddenly opened up the gates of the Tillery Dam, causing an unnatural and excessive volume of water to flow down the Yadkin River, greatly accelerating and increasing the volume of the natural flow of the river and causing the crops of the plaintiff to be damaged and destroyed to his great hurt. In his second cause of action the said plaintiff alleged that the defendant, by obstructing the natural flow of water in said river and by materially and substantially cutting off and depriving the plaintiff of the normal use of the flow of the stream and by the unreasonable use of said water by the defendant in raising and lowering the gates of the dam in disregard of the rights of the plaintiff, the lower riparian owner, causing the flow of water to be irregular and not in accordance with its normal and natural flow, and by the taking and use by the defendant of an unreasonable quantity of the normal and natural flow, the plaintiff has suffered substantial and permanent damage in that the continued operation of a ferry then being operated by the plaintiff in going to and from his lands and as a public ferry was thereby made impossible.
There was a verdict for the plaintiff on each cause of action. The amount allotted to the plaintiff on the second cause of action as permanent damages has been paid and satisfied in full by the defendant.
Thereafter, in 1934, James A. Leak died testate, devising said lands to the plaintiff Edna R. Leak Bruton, for herself and in trust for the plaintiff James A. Leak, Jr.
The plaintiffs instituted this action 19 January, 1938, to recover damages caused by the alleged negligent and wrongful operation of the Tillery Dam on or about 7 April, 1936, in wrongfully manipulating the flood water during a period of freshet and by suddenly discharging an excessive and unreasonable quantity of water so as to bring about the existence of high and exceedingly rapid and destructive water in the Pee Dee River below said dam, causing an overflow which resulted in washing away the top soil of the plaintiffs' lands and destroying its value for agricultural purposes. Plaintiffs also allege that in the construction of the Tillery Dam in the manner described, and in the manipulation of the natural flow of the stream, and by interfering with the normal and natural flow thereof, and by creating a reservoir or basin in which large quantities of water were impounded, the defendant wrongfully invaded the right of the plaintiffs to the natural and normal flow of said stream; and that by the impounding of an unreasonable quantity of water in said reservoir the defendant created, in times of freshet or high water, a highly damaging condition which unlawfully injured the property of the plaintiffs and has deprived them of the beneficial use of a large part thereof; that in the manipulation of said dam the flow of water in said stream is at times practically cut off and at other times materially and injuriously accelerated and increased so that the plaintiffs are deprived of their rights to the natural flow of said stream and which has resulted in eroding and washing away and greatly damaging plaintiffs' lands.
At the conclusion of all the evidence the defendant renewed its motion to dismiss as of nonsuit first entered at the conclusion of the plaintiffs' evidence. At the time the motion was overruled and the defendant excepted. Thereafter, during the progress of the argument, the court, having decided that it was in error in overruling the motion of nonsuit, reversed itself and entered judgment dismissing the action as of nonsuit. The plaintiffs excepted and appealed.
Vann & Milliken, of Monroe, and B. M. Covington, of Wadesboro, for plaintiffs, appellants.
Taylor & Thomas and Robinson, Pruette & Caudle, all of Wadesboro, and W. H. Weatherspoon and A. Y. Arledge, both of Raleigh, for defendant, appellee.
While the complaint does not undertake to state two separate and distinct causes of action, it, in fact, alleges two causes of action and was so interpreted and treated by the Court below.
The first cause of action alleges the wrongful use of the water of the Yadkin River by the defendant an upper riparian owner, which deprives the plaintiffs of their right to the natural and uninterrupted flow of the stream and which has caused the erosion and washing away of the plaintiffs' land--a continuing wrong which amounts to a taking of plaintiffs' land or substantial interest therein.
As to this cause of action the defendant pleaded res judicata and in support thereof offered in evidence the judgment roll in the case of James A. Leak v. Carolina Power & Light Co., instituted 1 August, 1929, and which was terminated at the November Term, 1930, by final judgment awarding the plaintiff therein permanent damages on his second cause of action as stated in his complaint. This plea was sustained by the Court below.
From an examination of the second cause of action set out in the complaint in the James A. Leak case and of the complaint in this cause, it appears that plaintiffs' first cause of action herein and the second cause of action as set out in the James A. Leak complaint are stated in substantially identical language. The alleged wrongful conduct of the defendant, as pleaded by James A. Leak, as the basis for a second cause of action is identically the same wrong set forth and described by these plaintiffs in their complaint. As to this phase of the case the causes of action are the same. But, in the James A. Leak action he sought to recover damages for the destruction of his ferry rights only and the plaintiffs contend that the judgment in said action is not a bar to their right to recover damages to the land itself. They insist, therefore, that their exception to the order of the court sustaining the plea of res judicata should be upheld.
This exception to the ruling of the court on the plea of res judicata presents but one question. Where two actions are based on the same cause or right of action bottomed on the same alleged wrong, does the fact that in the first action the plaintiff sought to recover a part of the damages to which he was entitled bar that plaintiff's successors in title from maintaining an identical action for the recovery of damages to the land itself?
Our decisions are to the effect that where the injuries complained of result from structures or conditions permanent in their nature and their existence and maintenance is guaranteed or protected by the power of eminent domain or because the interest of the public therein is of such exigent nature that the right of abatement at the instance of an individual is of necessity denied it is open to either plaintiff or defendant to demand that permanent damages be awarded; the proceedings in such case, to some extent, taking on the nature of condemning an easement. Rhodes v. Durham, 165 N.C. 679, 81 S.E. 938; Clinard v. Kernersville, 215 N.C. 745, 3 S.E.2d 267. An action by land owners against a corporation possessing the right of condemnation for the maintenance of a continuing nuisance which adversely affects the value of plaintiff's land is, by demand for permanent damages either by the plaintiff or by the defendant, converted into an action in the nature of a condemnation proceedings for the assessment of damages for the value of the land or easements taken. The assessment of permanent damages and the payment thereof vests in the defendant an easement entitling it to the continued use of the property in the same manner. Clinard v. Kernersville, supra. In those cases wherein it is alleged that lands have been subjected to an additional burden, the question of negligence is not involved. Clinard v. Kernersville, supra.
The wrong complained of by James A. Leak in his second cause of action, as stated in his complaint, was continuing in its nature, resulting from the construction and maintenance of a permanent plant, the operation of which adversely affected and damaged the property of said plaintiff, a lower riparian owner. The prayer for an award of permanent damages therein converted the cause into an action for damages resulting from the wrongful taking, in part, of plaintiffs' property which taking amounted in law to the imposition of an easement. The assessment and payment of permanent damages vested in defendant an easement in plaintiff...
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