Elder v. Barnes

• Decision Date: 16 April 1941
• Docket Number: 380.
• Citation: 14 S.E.2d 249,219 N.C. 411
• Parties: ELDER v. BARNES.
• Court: North Carolina Supreme Court

14 S.E.2d 249

219 N.C. 411

ELDER v. BARNES.

No. 380.

Supreme Court of North Carolina

April 16, 1941

Defendant was attached for contempt for wilful disobedience of an order of court, in an action wherein plaintiff sought to restrain defendant from obstructing a ditch or branch, and to require him to remove obstructions wrongfully placed therein.

Plaintiff's land lies immediately above that of defendant, and it was alleged that the necessary outlet for the water naturally flowing from plaintiff's land was through a branch or ditch on defendant's land, and that defendant had placed obstructions, in the branch or ditch impeding the flow and backing water on plaintiff's land to his damage. Plaintiff prayed for an order requiring defendant to remove the obstructions. Defendant answered admitting the ownership and location of the lands, but alleged plaintiff had wrongfully diverted waters, and that the acts complained of had been done to protect defendant's rights, and to prevent sand running into the ditch and filling it up.

At the September Term, 1939, of the court plaintiff and defendant entered into an agreement, at the suggestion of defendant, to submit the matter in controversy to arbitartion, and the arbitrators recommended by defendant were agreed upon. This agreement was incorporated in an order of court, and signed by plaintiff and defendant. It was agreed that the report of the arbitrators should constitute a rule of the court, and that pending the decision of the arbitrators the defendant should forthwith remove all brush and similar obstructions in the ditch on defendant's land. It was further set out in the agreement "that the plaintiff and defendant agree that the report and award of said arbitrators shall be final, and agree respectively to do such act or acts as said arbitrators may in their report direct them to do."

The arbitrators agreed on, after viewing the premises and hearing the evidence offered by the parties, reported their award in writing substantially as follows: That the drain ditch or channel, which had been used to drain the land of plaintiff for forty years, had been wrongfully obstructed by defendant that the obstructions, such as logs and brush, had not been fully removed and that said obstructions should be immediately removed and the channel or drain ditch left open in order to allow the land of plaintiff to drain properly that defendant had not been damaged by any act of plaintiff. It was further declared as the award of the arbitrators that defendant should not only remove the obstructions in the ditch or channel, but that he should cut a proper ditch therein 3 feet wide and 3 feet deep along a portion of the channel, and that the plaintiff should cut a proper ditch of same dimensions in another portion of the channel, so as to provide a continuous drain; this to be done forthwith.

At the February Term, 1940, defendant's motion to set aside the award was denied, there being no allegation of corruption, partiality or misconduct, and no allegation that the arbitrators exceeded their powers. The court thereupon entered judgment upon the award and in accord therewith, and it was specifically ordered that defendant be restrained and enjoined from allowing the obstructions in the ditch to remain therein, and from placing obstructions therein or doing any act to interfere with the flow of the water in said ditch as same extends through his land to the creek; and it was ordered that defendant's portion of the ditch referred to in the award be cut in the old channel as directed by the arbitrators in the award. There was no exception to any part of this order and judgment, and no appeal therefrom.

At February Term, 1941, pursuant to motion supported by affidavits, after due notice, order issued that defendant show cause why he should not be attached for contempt of court for wilfully failing to obey the orders of the court. Defendant appeared and the matter was duly heard upon affidavits offered by plaintiff and defendant.

Thereupon the court found the facts, setting them out in detail in chronological order, material portions of which are quoted as follows: "That the defendant failed to comply with the award of the arbitrators and the judgment of the court confirming the same in that he permitted the obstructions specified in the award to remain in the said branch and drain ditch mentioned in the complaint and award and in that he failed to open the ditch specified in the award. That the plaintiff, who performed his part of the award, served notice on the defendant on August 21, 1940, that the plaintiff who moved (would move) before the presiding Judge at the August-September 1940 Term of Alexander Superior Court that the defendant be attached as for contempt of court for his failure to remove said obstructions and open said ditch. That upon answer filed by the defendant to plaintiff's said notice and motion, a hearing was had before Hubert E. Olive the presiding Judge, at the August-September Court upon the question as to whether the defendant should be attached as for contempt. That upon said hearing the presiding Judge intimated that the defendant would be attached as for contempt, and thereupon the defendant solemnly promised, in open court, that he would comply...