Clark v. Patapsco Guano Co

• Decision Date: 26 February 1907
• Citation: 144 N.C. 64,56 S.E. 858
• Parties: CLARK. v. PATAPSCO GUANO CO.
• Court: North Carolina Supreme Court

144 N.C. 64

56 S.E. 858

CLARK.

v.PATAPSCO GUANO CO.

Supreme Court of North Carolina.

Feb. 26, 1907.

1. Appeal—Exceptions not Discussed in Brief—Abandonment.

Exceptions not discussed in appellant's brief are, under Supreme Court rule 34 (53 S. E. ix), to be taken as abandoned.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4256-4261.]

2. Trial—Submission of Issues.

Issues need not be submitted in any particular form, but it is enough that they are so framed as to present the material matters in dispute, and to enable each party to have the full benefit of his contention, and, when answered, to determine the rights of the parties and support the judgment.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 840-845.]

3. Same.

Defendant is not entitled to have submitted the issue of settlement when he has pleaded no such defense.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 828-835.]

4. Same.

One is not prejudiced by refusal to submit an issue of easement vel non, where the court directs that a certain issue be answered "No" if there was an easement, and it is answered "Yes."

5. Waters and Water Courses—Injury to Dam—Evidence—Relevancy.

On the question whether the erection of defendant's dam obstructing a flood channel of a river was the cause of the breaking of plaintiff's dam by waters ponded up against it, evidence that it had never been broken by the water before the erection of defendant's dam, and was thereafter broken three times, is relevant.

6. Same—Obstruction of Flood Channel.

One may not obstruct the flood channel of a river by erection of a dam. thereby throwing the water back onto and breaking a dam erected by another to keep waters off his land, without liability for the injury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 202, 203.]

7. Torts—Liability of Tort-Feasoe—Concurrent Causes.

One whose tort in erecting a dam across the flood channel of a river concurs with other causes in producing an injury is liable as though it were the sole cause.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45. Torts, § 22.]

Appeal from Superior Court, Halifax County; Shaw, Judge.

Action by Walter Clark against the Pataps-co Guano Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The plaintiff alleges that he owns and cultivates a tract of land in Halifax county, containing about 1, 400 acres, and lying on the south side of the Roanoke river, and the defendant owns and cultivates a large tract of land, which lies above the plaintiff's and between it and the said river. The plaintiff and those under whom he claims have for many years maintained, on what is now his farm, a dam or embankment, which is parallel with the said river and about one-half mile therefrom, for the purpose of preventing the flooding of the plaintiff's cultivated lands by the waters of the river which overflow its banks in times of high freshets. There is a large bend in said river just opposite the farms of the plaintiff and defendant; the same beginning on defendant's farm, extending out in a north, or northeast direction, and ending just below plaintiff's farm. Extending across said bend from about where it begins on defendant's farm to where it ends below plaintiff's farm, is a wide natural depression, or drain, ranging in width from about 300 yards to a mile, which is the natural course, or drain, for a large portion of the waters of said river in times of freshets and floods. Said drain runs about parallel to plaintiff's dam, between it and the river, and not only affords room for the spread of the waters of the river, but takes the overflow waters or the greater part thereof, across said bend, and past plaintiff's farm, very much more rapidly and quickly than the same could be taken by the course of the river. In the year 1897, the defendant wrongfully and unlawfully erected a cross-dam from a point on Roanoke river about opposite the lower part of plaintiff's dam, across said depression or drain, to the plaintiff's dam near its lower end, extending the same over the lands of one W. H. Josey, and for a short distance over the plaintiff's land, and joining it to the plaintiff's dam without plaintiff's consent Said cross-dam runs at about a right angle to plaintiff's dam, and was made higher and much stronger than his dam. The defendant has ever since wrongfully and unlawfully maintained said cross-dam. That the defendant wrongfully and unlawfully erected a dam or embankment, from the end of said cross-dam next to the river up and along said river to a point some distance above plaintiff's farm, and thence across to the highland of the defendant's farm; the latter part of said dam being called the "Upper Dam." The defendant wrongfully and unlawfully maintained said dams until the 25th day of May, 1901. It is further alleged that the defendant unlawfully and wrongfully obstructed the natural flow of the water in the river, and caused the same topond and collect In a larger quantity than it otherwise would have done. It is then alleged that in May, 1901, there was a large freshet in the river, and the defendant's upper dam, by reason of its negligent and faulty construction, gave way, and the waters of the river were thrown upon the plaintiff's land in much greater volume, and with much greater force, than would have been the case if the said dam had not been there, and that the lower or cross-dam stopped the flow of the water, as it rushed down the said natural drain or depression, and caused it to be ponded back on the plaintiff's land, and against his dam, so that it broke and the water escaped through the breach thus made, and flooded the plaintiff's lands, to his great damage. The plaintiff also alleges separately that the said wrongful acts of the defendant were negligently done in respect, not only to the manner of constructing the dams, but to the obstruction of the natural flow of the water.

The material allegations of the complaint were denied by the defendant, which pleaded specially that it had acquired an easement by 20 years adverse user to maintain the lower or cross-dam, as well as the other dams described in the complaint, and that it owed no duty to the plaintiff concerning the same, and had committed no wrong to him by reason of the alleged acts of which he complains. In order to show that the plaintiff's dam was broken by the ponding of water back upon it, and that this was caused by the cross-dam of the defendant obstructing the natural flow of the water from the river down the natural depression or channel and through the defendant's land, the plaintiff proposed to show by his own testimony that since the cross-dam was erected, his dam had been broken several times at the same place. The defendant restored it each time it broke, and the plaintiff testified that when restored it was not as good a dam as it was before the first break. It was about the same height, though not as thick. This evidence was admitted over the defendant's objection. The plaintiff had previously testified that the break in his dam was about 10 feet from the defendant's cross-dam—right at the junction of the two dams. The witness also testified that If the upper dam and the cross-dam were not there, the natural course of the overflow water during freshets would be down the deep depression on the defendant's land, and that his dam had not broken until the cross dam was built; the latter being higher and thicker than his dam. There was evidence tending to show that the deep depression on the defendant's land served as a natural drain or flood channel for the waters of the river in times of freshets. The defendant's proof tended to show that the plaintiff's dam was stronger and better when it was restored than it had been before. The parties introduced testimony which tended to sustain their respective contentions.

The defendant in apt time requested the court to submit the following Issues to the jury: "(1) Did the defendant by its maintenance of its river dam wrongfully cause any injury to the plaintiff? (2) Did the defendant have an easement to maintain said dam? (3) Did the plaintiff enter into an agreement with the defendant to forego any right to recover damages if the defendant would restore plaintiff's dam to the condition in which it was before the injury? (4) Did the defendant comply with said agreement? (5) What damage, if any, has plaintiff sustained?" The court refused to submit the issues, and defendant excepted. The court then submitted three issues, which with the answers thereto, were as follows: "(1) Did the defendant negligently obstruct the natural flow of the flood waters of Roanoke river by its dams, and cause the same to collect and be thrown against plaintiff's dam in greater volume and force than they naturally would have been and thereby break plaintiff's dam and flood and injure his farm as alleged? Ans. No. (2) Did defendant by its dam wrongfully and unlawfully obstruct the natural flow of the flood waters of Roanoke river and cause the same to collect and be thrown upon plaintiff's dam in greater violence and force than they otherwise would have been and thereby break the same and flood and injure plaintiff's farm as alleged? Ans. Yes. What damage if any is plaintiff entitled to recover? Ans. $1,000."

The court charged the jury In part as follows: "The plaintiff contends that outside of said dam and between it and the main channel of the river, there is a natural depression or drain 300 or more yards wide, which is a natural flood channel of Roanoke river; that is, a channel through which the overflow waters of the river naturally flow whenever the waters rise sufficiently high to overflow the banks of the main channel of said river, and the court charges you if you find this to be true, that there was such a flood channel between the plaintiff's dam and the river, that the defendant had no right to obstruct...