Chappell v. Winslow, 27

• Decision Date: 01 February 1963
• Docket Number: No. 27,27
• Citation: 129 S.E.2d 101,258 N.C. 617
• Parties: R. S. CHAPPELL et al. v. G. H. WINSLOW, Jr., and wife, Evie Winslow.
• Court: North Carolina Supreme Court

Page 101

129 S.E.2d 101

258 N.C. 617

R. S. CHAPPELL et al. v. G. H. WINSLOW, Jr., and wife, Evie Winslow.

No. 27

Supreme Court of North Carolina.

Feb. 1, 1963

John H. Hall and Worth & Horner, Elizabeth City, for plaintiff appellees.

Leroy, Wells & Shaw, Elizabeth City, for defendant appellants.

SHARP, Justice.

Defendants assign as error the failure of the judge to nonsuit plaintiffs' action. They contend that there is a material and fatal variance between the allegations and proof in that plaintiffs alleged, and sought to enjoin, damage which would result if defendants widened and deepened the north-south highway ditch along the west edge of the Highway; whereas their evidence, and subsequent events, showed that they were attempting to prevent defendants from connecting east-west ditches with the highway ditch. Defendants further contend that they, with the consent of the plaintiffs, were permitted to clean out, widen and deepen the highway ditch the length of their property and that the action is now moot and should be dismissed.

With these contentions we cannot agree. The crux of plaintiffs' complaint is paragraph 5 which follows:

'That defendants, over the protests of plaintiffs, have now begun the digging of a canal parallel to the east side of the lands owned by them and leading southwardly parallel to said Highway 17 to the lands of plaintiffs and purpose to reverse the drainage of the lands of defendants from the west to the east and into the canal now being cut by defendants and turning all of the water therefrom on the lands of plaintiffs.'

It is implicit in this evidence, and in the consent order entered on July 20, 1957, that the plaintiffs do not fear any flooding from the natural drainage of defendants' land into the highway ditch. What they fear is the artificial collection of water from defendants' property into ditches which funnel it into the highway ditch to run south onto their property. This the judge restrained--by consent on July 20, 1957, and by final judgment on March 30, 1962.

While the complaint did not specifically ask that the defendant be restrained from opening east-west ditches into the highway canal, within fifteen days after the suit was started defendants themselves agreed not to open such ditches pending the trial. No element of surprise appears. It is the rule with us that the relief to be granted does not depend upon that asked for in the complaint but upon whether the matters alleged and proved entitle the complaining party to the relief granted. Griggs v. York-Shipley, Inc., 229 N.C. 572, 50 S.E.2d 914, 15 A.L.R.2d 798. The following statement by Chief Justice Merrimon in Presson v. Boone, 108 N.C. 78, 79, 12 S.E. 897, 900, is pertinent here:

'While it is far better and very desirable that the pleadings shall be directly pertinent, precise and orderly, still, when they can be upheld as sufficient, this must be done, if to do so works no injustice to a party. This is the spirit and purpose of the present method of civil procedure.' (Italics ours.)

The motions for nonsuit were properly overruled.

At the beginning of the trial the defendants moved to be allowed to amend the answer 'to allege that a part of the system of drainage referred to in the complaint and in the answer as 'defendants' system of drainage' had been dammed by a dirt fill by at least one of the plaintiffs and that this damming occurred approximately two weeks ago. ' The judge denied this motion. The denial was a matter within his discretion and not appealable.

Thereafter the defendants attempted to offer evidence about a fill, presumably the one referred to in the motion although this cannot be ascertained from the motion. The judge excluded the evidence and defendants assign this exclusion as error. They contend the evidence was competent to contradict plaintiffs that their drainage ditches were taxed to capacity because the fill would 'to some extent create a flooded condition of plaintiffs' property.' (Italics ours.)

The excluded evidence tended to show the following:

The fill in question was in a ditch on the southwest side of the Old Desert Road where it joined the Highway some distance south of the truck stop. The fill had been put there in the first instance by the State Highway Commission and then removed. About two weeks before the trial one of the plaintiffs replaced it. Water was higher on the west side of the fill than on the east.

There appears in the record a temporary restraining order signed by Judge Morris on December 29, 1961 enjoining the plaintiffs from placing any fill in the ditch along the southwest side of the Old Desert Road. This order was returnable on January 12, 1962, but the record does not show what was then done. The effect of the fill is far from clear from the proffered evidence. If the exclusion of this evidence was error, it involved a situation of only two weeks duration immediately preceding the trial, and its exclusion will not upset the trial. The judge who heard the excluded evidence also saw the fill. He ruled the evidence incompetent and, on this record, prejudice does not appear.

Defendants' assignments of error 23 through 36 are to the findings of fact made by the judge. The defendants' discussion of these assignments of error in their brief is as follows:

'It is respectfully submitted that these findings of fact insofar as they support the plaintiffs' position and prejudice the rights of the defendants, are not supported by the evidence, nor any evidence of sufficient probative force to be considered by the court. It is reversible error for the judge to admit and act upon incompetent evidence in finding facts.'

As to those assignments, appellants' brief is a 'pass brief' such as was condemned in Jones v. Southern R. R., 164 N.C. 392, 80 S.E. 408; Crowell v. Eastern Air Lines, 240 N.C. 20, 31, 81 S.E.2d 178. However, except for an...