Davis v. Atl. Coast Liner. Co
| Decision Date | 05 June 1947 |
| Docket Number | No. 597.,597. |
| Citation | 42 S.E.2d 905,227 N.C. 561 |
| Court | North Carolina Supreme Court |
| Parties | DAVIS. v. ATLANTIC COAST LINER. CO. et al. |
Appeal from Superior Court, New Hanover County; W. J. Bone, Judge.
Action by Ernest P. Davis against Atlantic Coast Line Railroad Company, a corporation, and another, for recovery of damages to plaintiff's property allegedly caused by wrongful diversion of surface water by defendants upon plaintiff's land. From an adverse judgment, plaintiff appeals.
No error.
W. F. Jones, of Whiteville, W. L. Farmer, of Wilmington, and Varser, Mclntyre & Henry, of Lumberton, for plaintiff, appellant.
John H. Manning, of Raleigh, Chauncey H. Leggett, of Tarboro, and Howard H. Hubbard, of Clinton, for defendant-appellee North Carolina Shipbuilding Co.
M. V. Barnhill, Jr., of Wilmington, and McLean & Stacy, of Lumberton, for defendant-appellee Atlantic Coast Line R. Co.
The plaintiff's action is for recovery of damages to his property allegedly causedby the wrongful accumulation, acceleration, and diversion of surface water by defendants upon and from their own respective premises, onto and over plaintiff's premises lying upon a lower level. In this tortious act, it is alleged, the defendants acted conjointly.
The premises of plaintiff, alleged to have been damaged, consisted of a parking lot, on which several buildings were located, in the Sunset Park section of the City of Wilmington, east of the river. A spur track of the defendant Atlantic Coast Line Railroad Company adjoins and borders the plaintiff's property on the easterly side, running about northeast and southwest between plaintiff's property and that of the defendant Shipbuilding Company, which latter property it borders on the northwest. Plaintiff's property is nearer the river at a somewhat lower level than the property of either defendant. That of the Shipbuilding Company is on the highest level. At the time referred to in the pleadings and evidence the Shipbuilding Company carried on a war time shipbuilding industry at its plant along the river in the immediate vicinity, in which a very large number of workmen were employed. The plaintiff prepared his property, consisting of about an acre, as a parking lot for automobiles, and built upon it a small storehouse and other buildings. Some time afterward the Shipbuilding Company put the area across the railroad, opposite plaintiff's property, in shape to be used as a parking lot for its employees, and possibly others. The terrain theretofore was somewhat irregular in topography; this was leveled off, and the lot was covered with cinders and other material furnishing a hard surface suitable for parking. The surface theretofore had been sandy.
Generally, the whole area was described as inclined so that the drainage, in the natural condition of the area, was in an northwesterly direction toward the river, and from the defendant Shipbuilding Company's higher lot across the railroad and plaintiff's property, although the evidence is conflicting as to whether all the water from the Shipbuilding Company's parking lot, in its natural condition, would have drained that way. The plaintiff's property has been described as low and swampy.
In order to protect the railroad bed from injury by flooding and washing, the defendant Company installed three drain pipes, the effect of which was to carry the drainage under the rails rather than over them, which drains discharged water on plaintiff's parking lot.
The plaintiff bases his claim of damages upon the wrongful acts of the defendants in the following particulars:
That by leveling and hard surfacing its property across the railroad and above plaintiff's property, which had theretofore been highly absorbent, and in its natural state "absorbed the surface water that fell or ordinarily accumulated thereon from all sources, " the defendant Shipbuilding Company thereby accelerated the flow of water across its codefendant's right of way and upon plaintiff's land, to the latter's damage; and that the leveling and excavation of certain dunes or hills on defendant's property had the effect of diverting over plaintiff's lot surface water which would have gone elsewhere. Further, that by the installation of the drain pipes under the railroad track the surface water was diverted, dammed up, accelerated and discharged on plaintiff's land to his injury and damage.
The defendants deny that plaintiff suffered any damage by reason of the improvements put upon their own property or the manner of its use; and especially the installation of the drain pipes designated as one source of plaintiff's injury. They contended that plaintiff's injury by flooding and passing of water upon or over his premises was by reason of the natural drainage across the properties and the rainfall experienced, and not to any act of theirs; and that they did no more to their own property than they might lawfully do in its ordinary use to accomplish the legitimate purpose to which it was put.
There was much evidence taken on the hearing, contradictory in many of its aspects.
Plaintiff's evidence tended to show that as a consequence of directing the waters through the drainage pipes mentioned, hisparking lot was cut in channels. That the foundations of the buildings were weakened and they were greatly damaged; and that sand, garbage, and tin cans were left upon the property by the subsiding waters; that the area had been seen flooded up to the running boards of the cars and that the owners had to wade in after them. Experts testified for the plaintiff as to the effect of the change of topography on the flow of water and the effect of the drainage pipes installed under the Atlantic Coast Line Railroad Company's tracks in collecting and discharging water on the plaintiff's premises.
Evidence of the defense was of a contradictory nature, indicating that much of the flooding was the natural effect of the flow of water across the railroad track and on to plaintiff's property; and that at times after rains the flood was so great as to spout up when it hit the railroad tracks and dam up until it overflowed the area now occupied as a parking lot by the plaintiff.
The rationale of decision does not require detailed statement and analysis of this evidence. The verdict of...
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