Davenport v. Norfolk & S. R. Co

• Decision Date: 16 September 1908
• Citation: Davenport v. Norfolk & S. R. Co, 128 Am. St. Rep. 599, 62 S.E. 431, 148 N.C. 287 (N.C. 1908)
• Court: North Carolina Supreme Court
• Parties: DAVENPORT. v. NORFOLK & S. R. CO. et al.

62 S.E. 431

148 N.C. 287

DAVENPORT.

v.NORFOLK & S. R. CO. et al.

Supreme Court of North Carolina.

Sept. 16, 1908.

1.Railroads—Injuries from Construction —Right of Action—Action by Owner of Condemned Land.

Under the rule that the compensation for an easement in land taken by condemnation contemplated its use with a proper regard for the rights of the servient owner, recovery may be had for damages incident to the negligent construction of a railroad, though the right of way was purchased or acquired by condemnation.

[Ed. Note.—For cases in point, seeCent. Dig. vol. 41, Railroads, § 362.]

2.Waters and Water Courses — Ditches and Culverts—Duty, in Constructing.

If defendant railroad constructed its roadbed across several lead drainage ditches and a number of tap ditches feeders to the lead ditches, and put in culverts under its roadbed to drain the lead ditches, but conveyed the water in the feeders to the lead ditches by lateral drains along its road, the drainage for the lead ditches should be sufficient to pass the water from both the lead and tap ditches; and, though defendant could also convey water from adjacent lands across plaintiff's land into the lead ditches by the lateral ditches along its track, both the lateral and lead ditches must be sufficient to carry off the additional water as well as the water on plaintiff's land, and a failure to so construct the ditches would be negligence, entitling plaintiff to damages for resulting injuries.

3.Evidence—Opinion Evidence — Expert Testimony—Matters of Special Knowledge—Effect of Injuries to Property.

In an action for damages for defendant's failure to construct ditches sufficient to carry water under its roadbed, plaintiff was properly allowed to testify as to what his crops would have been in a certain year, and the value thereof, if defendant had left the ditches open; plaintiff having a personal knowledge of the conditions, as the evidence was in the nature of expert testimony on the facts.

[Ed. Note.—For cases in point, seeCent. Dig. vol. 20, Evidence, §§ 2343-2344.]

Appeal from Superior Court, Tyrrell County; Cooke, Judge.

Action by H. T. Davenport against the Norfolk & Southern and the Suffolk & Carolina Railroad Companies.From a judgment for plaintiff, defendants appeal.Affirmed.

There was evidence tending to show that defendant companies, having condemned a right of way, proceeded to construct their roadbed through the lands of plaintiff, and that such roadbed crossed a number of lead ditches made by plaintiff for the proper drainage of his lands, and also a number of tap ditches conveying the water of said land to the lead ditches at various points below the defendants' roadbed.That defendants constructed culverts or put in pipes at the points where these lead ditches had passed under the roadbeds, but did not make any such drainage for the tap ditches, but, in constructing its roadbed, by lateral ditches, the water which had been carried by these tap ditches, and also some water from adjacent lands, was conveyed along the side of the roadbed into the lead ditches, and, by reason of the increase of water, the culverts were not sufficient to carry off the waters of the usual and ordinary rains falling in the vicinity, and, by reason of this defect, these waters were ponded back upon the land of plaintiff, causing much damage and injury to plaintiff's lands and the crops growing thereon.

The plaintiff, testifying to his alleged injury, and the cause thereof, among other things, said: "The water on the north side of the railroad drains southwardly to a swamp.My land lies between the letters 'A' and 'D' on the maps.Before the railroad was constructed, my ditches ran just as they do now.The railroad cut ditches on each side of the track, and threw up an embankment or roadbed, and that caused all the tap ditches to fill up, only leaving open the lead ditches at 'A, ''B, ' and 'C The wafer before that time went southwardly, and was carried off by the lead ditches and tap ditches which drained my land.I cleaned out these ditches in 1893.My father and myself were renters of the land, and I purchased it in 1897.From 1897we made good average crops for that time.Before the railroad cut the ditches, none of the water east of D nor west of A came down on my land, but since then the water for distance of half a mile east of A comes down on my land, and when there came a big rain it would come down from east of D.I think the roadbed is from two to three feet high.The land on both east and west sides of my land is higher than mine, and the fall of the land is from the north.The conditions as changed by the railroad have greatly increased the flow of water on my land, and, the culverts not being sufficient to take it off promptly, the water ponded on my land, and on the south side the ditch would not be sufficient to hold the water.I have seen the water so high that it flowed over the top of the railroad.In 1906 I had in cultivation about 180 acres of corn, cotton, peas, and sweet potatoes.There were 68 acres of cotton, 80 in corn, 5 in potatoes, and the balance in peas."Witness was here asked: "If the railroad com-pany had left open your drainage as it was before they went there, how much crop would you have made in 1906?"To this question and the testimony in response thereto defendants objected.Objection overruled.Exception.The witness answered: "I would have made a quarter of a bale of cotton per acre, and I only made 7 bales on the 68 acres.Cotton was worth 10 to 11 cents per pound, and the bales weighed 500 pounds each.I would have made 3 barrels of corn per acre, and only made 50 barrels on about 80 acres.Corn was worth $4 per barrel.The stock peas were not damaged so much.The potato crop was a failure."

Issues were submitted and responded to by the jury as follows: "(1) Was the railroad of defendants negligently constructed, and, if so, was water thereby ponded on the lands of plaintiff as alleged?Answer: Yes.(2) If so, what damage to his lands and crops has plaintiff sustained thereby?Answer: $1,500.(3) Has the cause of any injury to plaintiff's land in respect to drainage and as complained of by plaintiff been removed, and, if so, when?Answer: Yes; January 28, 1908."

Motion for new trial by defendants for error of the court in its ruling on the question of evidence as above indicated, and for errors in the charge.Motion overruled, and defendants excepted.Judgment on verdict for plaintiff, and defendants excepted and appealed.

Small, MacLean & McMullen, for appellants.

Aydlett & Ehringhaus, for appellee.

HOKE, J.(after stating the facts as above).In Mullen v. Canal Co., 130 N. C. 496, 41 S. E. 1027, 61 L. R. A. 833, a case concerning chiefly the rights acquired by condemnation proceedings, Douglas, J., delivering the opinion of the court, on page 503 of 130 N. C., on page 1030 of 41 S. E., said: "It is well settled that no damages are contemplated in the original condemnation except such as necessarily arise in the proper construction of the work."And in Adams v. Railroad, 110 N. C. 325, 330, 14 S. E. 859, Mr. Justice Avery, in declaring the same doctrine, said: "Whether an easement passed by private sale or condemnation, the estimate of its value is presumed to be made in contemplation of the observance on the part of the corporation of the golden maxim of the law by so exercising its privilege as to inflict no unnecessary injury on the servient owner.Lewis on Eminent Domain, 571; Angell on Water Courses, 97;Id. 95, 95a;Tillotson v. Smith, 32 N. H. 94, 64 Am. Dec. 355;Embry v. Owen, 6 Exc. 369;Pugh v. Wheeler, 19 N. C. 50;Walton v. Mills, 86 N. C. 280;Wilhelm v. Burley-son, 106 N. C. 389, 11 S. E. 590; Gould on Waters, 209, 214, 401, 405;Hosher v. Railroad, 60 Mo. 329;Curtis v. Railroad, 98 Mass. 428;Lawrence v. Railroad, 71 C. L. Repts. 643;Mills on Em. Domain, 81, p 220;Munkres v. Railroad, 72 Mo. 514;Railroad v. Wicker, 74 N. C. 220.And further, on page 331 of 110 N. C., on page 859 of 14 S. E.: "It being admitted, as a general rule, that such injuries to the servient tenement as are necessarily...