Emry v. Raleigh & G.R. Co.
| Decision Date | 25 February 1889 |
| Citation | 9 S.E. 139,102 N.C. 209 |
| Parties | EMRY et ux. v. RALEIGH & G. R. CO. |
| Court | North Carolina Supreme Court |
A witness testified for defendant as an expert that, in his opinion, defendant's culvert was sufficiently large for the size of the stream; that it was the largest culvert he ever built. Held, that plaintiff could show that a culvert built for another company, a short distance further down stream, was larger than defendant's.
W. H Day, for appellant.
R. O Burton, Jr., for appellees.
This was a civil action tried before GRAVES, J., at May term 1888, of the superior court of Halifax county. There was a verdict for plaintiffs, and the defendant appealed to the supreme court. The pleadings were as follows, omitting immaterial portions of them:
The plaintiffs, complaining of the defendant, allege: (1) That the defendant is a corporation duly chartered and organized under an act of the general assembly of North Carolina passed at its session in 18--and acts amendatory thereof. (2) That the plaintiff Emma J. intermarried with Thomas L. Emry many years prior to the year 1884. (3) That the feme plaintiff is the owner of, and for some years prior to 1884 has been the owner of, a valuable farm, adjacent to the town of Weldon, and lying upon Chockeyotte creek, and upon the upper or south side of the roadbed of the defendant, which said farm is commonly known as the "Model Farm." (4) That the defendant's track passes over said Chockeyotte creek, and the defendant, more than three years prior to the beginning of this action, negligently constructed a culvert under its said track for the passage of the waters of said creek, which it has maintained ever since, to the great nuisance of the plaintiff. (5) That in times of freshet or excessive rains the said culvert is entirely too small for the free passage of the waters of said creek, so that the said stream becomes dammed and choked up, and the waters thereof are ponded back upon the plaintiff's land, to its great injury and diminished productiveness for purposes of agriculture. (7) That in the fall or late summer of 1885 the said defendant wrongfully and negligently, by means of its said culvert, as aforesaid, caused the waters of said creek to pond back upon plaintiff's land, and brick-yard situated thereon, and destroyed 175,000 brick, the property of the plaintiff, standing thereon, worth $5 per thousand, and accumulated clay and débris upon the said brick-yard of the plaintiff, to her damage $1,075. (8) That about May or June, 1887, the said defendant wrongfully and negligently, by reason of its said culvert as aforesaid, caused the waters of said creek to pond back upon the plaintiff's land and brick-yard situated thereon, and destroyed 75,000 brick situated thereon, the property of plaintiff, worth $5 per thousand, and accumulated clay and débris upon said yard, to her damage $475, and destroyed the plaintiff's crop growing upon said land, to her further damage $900. (9) That about the last of October or first of November, 1887, the said defendant negligently and wrongfully caused the water of said creek to pond back upon the plaintiff's land and brick-yard as aforesaid, by means of said culvert, and destroyed 15,000 brick, the property of plaintiff, standing upon said yard, which said brick were worth $5 per thousand, and accumulated clay and débris thereon, to the plaintiff's damage $125. (10) That the annual damage to the plaintiff's crops of grass, oats, corn, etc., has been $500 per year for the past three years. Wherefore the plaintiff prays judgment for $4,000 damages, and costs.
ANSWER.
The defendant, answering the complaint herein, says: (1) That sections 1 and 2 are admitted. (2) That section 3 is admitted, with the following modification, i.e., that the farm of the plaintiff known as the "Model Farm" does not abut on or touch the roadbed or right of way of the defendant. (3) That section 4 is denied as therein charged; and in answer thereto the defendant says that, more than 20 years before the commencement of the plaintiff's action, the defendant caused to be constructed over the said creek, by skillful engineers, and with the utmost care, the said culvert as a part of its road-bed and track, which it was duly and legally authorized to do; and this defendant is informed and believes, and so avers, that the said culvert in no way obstructs or impedes the natural flow of the water in and along said creek, but, on the contrary, the capacity of said culvert exceeds many times the capacity of the channel of said creek; and this defendant, denies that it has unlawfully, negligently, or willfully erected or maintained any nuisance to the plaintiff by the construction of said culvert. (4) That section 5 of the complaint is not true, and is denied; and, further answering said section, this defendant says that the culvert of the defendant exceeds many times the natural capacity of said creek, and that the overflow of the plaintiff's said land is caused by the negligence of the plaintiff in not removing obstructions from and near the bed of said creek, so as to allow a free discharge of the surplus waters thereof,--all of which said obstructions are above the defendant's culvert and right of way. (5) That section 7 of the complaint is not true, and is denied; and, as a further answer thereto, this defendant says that, prior to placing their brick-yard on said "Model Farm," the plaintiffs well knew that said yard was subject to overflow, both from the Roanoke river and said creek, in times of freshets therein, and the defendant alleges that the plaintiffs were guilty of contributory negligence in placing their said brick-yard on said farm. (6) That section 8 of the complaint is not true, and is denied; and, further answering said section, this defendant says that the damages to said plaintiff's brick-yard and bricks were caused by the contributory negligence of plaintiffs, as set out in section 5 of this answer; and that as to the alleged damages of the plaintiff's growing crops, if any, this defendant alleges the same was caused by the negligence of the plaintiff in not causing his said land to be properly drained, and in not removing obstruction to the flow of the water in said creek. (7) That section 9 of the complaint is not true, and is denied; and, for further answer thereto, this defendant adopts the next two preceding sections of this answer as an answer thereto. (8) That section 10 of complaint is not true, and is denied; and, for further answer thereto, defendant alleges that the alleged damage to plaintiff's crop, if any, was caused by the negligence of the plaintiff, as herein before set out and pleaded. And for a further defense to the plaintiff's said action these defendants say that the alleged damages charged in complaint, if any, were the result of unusual and excessive rain, which no care, caution, or foresight of the defendant could have prevented, and the defendant alleges that it was guilty of no negligence or want of due care in the construction and maintenance of its said culvert; and, for a further defense, this defendant says that, more than 20 years before the commencement of this action, it erected its said culvert of its present dimensions, and has been in the peaceable and undisturbed possession and maintenance thereof since then up to the bringing of this action, and that the then owner of the plaintiff's land assented and agreed to the building of said culvert. Wherefore defendant asks judgment that he go without day, and for his costs.
AMENDED COMPLAINT.
The plaintiff, by leave of the court, amends his complaint by striking out in section 5, line 2, the word "excessive," and inserting in lieu thereof the word "heavy."
The plaintiff offered issues numbered 1 and 2, and the defendant offered issues numbered 3 and 4. The issues thus submitted were approved by the court, and submitted to the jury. After the charge, and before the jury retired, the court directed issue No. 4 to be divided, and the issues submitted were as follows: (1) Has the defendant negligently ponded water back upon the plaintiff's land? (2) If so, what damage has plaintiff sustained thereby? (3) Have the plaintiffs been guilty of contributory negligence? (4) How long has defendant been using the culvert in its present condition? (5) And has the user given the defendant an easement in the lands of plaintiff? To this defendant excepted. The defendant asked that this issue be submitted to the jury: This was refused, and the defendant excepted. The defendant asked to have this issue submitted to the jury: "What damages did plaintiff sustain by the ponding back of the water on that occasion?" meaning 10th May, 1887. The court declined to submit this issue, and defendant excepted.
There was much evidence offered on both sides, and it seems material to set out a good deal of it in order to present the several exceptions made. The complainant, T. L. Emry testified: ...
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