Forest City Cotton Co. v. Mills

• Decision Date: 19 March 1941
• Docket Number: 162.
• Parties: FOREST CITY COTTON CO. et al. v. MILLS.
• Court: North Carolina Supreme Court

13 S.E.2d 557

219 N.C. 279

FOREST CITY COTTON CO. et al. v. MILLS.

No. 162.

Supreme Court of North Carolina

March 19, 1941

Hamrick & Hamrick and Paul Boucher, all of Rutherfordton, for plaintiff:

C O. Ridings, of Forest City, and Oscar J. Mooneyham, of Henrietta, for defendant.

STACY Chief Justice.

As was said on the rehearing of Peele v. Powell, 161 N.C 50, 76 S.E. 698, there is no division in the Court as to the correctness of the propositions of law first announced herein, but upon a fuller consideration of the record, the conclusion is now reached that the judgment of the Superior Court should be upheld.

The plaintiff's land is on Puzzle Creek, a tributary of Second Broad River. It is eight miles above the defendant's milldam. It is not alleged that the waters of the river, or of the creek, were ponded back upon plaintiff's land, thus creating a trespass as in the cases originally cited and relied upon, see Clark v. Patapsco Guano Co., 144 N.C. 64, 56 S.E. 858, 119 Am.St. Rep. 931, but the allegation is that the defendant's dam has caused the flow of the water in the river above the dam to be impeded and slowed up, and caused sand carried by the river to be deposited in the river bed, which in turn has impeded and slowed up the flow of Puzzle Creek, and caused sand and other debris carried by the creek to be deposited in the creek bed until "it is now impossible to drain plaintiff's land". See Sink v. Lexington, 214 N.C. 548, 200 S.E. 4.

With the allegations of negligence eliminated on the hearing and the plaintiff stipulating "this case may be tried upon the theory of permanent damages", it would seem that the validity of the trial should be sustained. The jury, after hearing the evidence and viewing the premises, answered the issue of liability in favor of the defendant.

Our first impression is not confirmed by the above portions of the record and a further critical re-examination of the transcript. Fortunately the rule permits a correction of the inadvertence without the necessity of another trial in the Superior Court. Rule 44 of the Rules of Practice, 213 N.C. 832; Carruthers v. Atlantic & Y. R. R. Co., 218 N.C. 377, 11 S.E.2d 157.

Petition allowed.

CLARKSON, J., dissenting.

SEAWELL, J., concurs in dissent.

CLARKSON Justice (dissenting).

The plaintiff owns several acres of land on Puzzle Creek. It had on this land a large number very valuable magnolia trees and other nursery plants. Puzzle Creek runs into Second Broad River across which the defendant has constructed and now maintains a dam. This dam caused the velocity of the water in the river to be considerably reduced, and therefore the sand which the river had formerly carried was deposited in the bottom of the stream, thereby gradually raising the bed of the river. The raising of the bed of the river materially reduced the fall of Puzzle Creek, which in turn greatly lessened the speed of that stream. As the velocity of the creek was reduced sand, silt, etc., which had formerly been carried by the creek was deposited on the bottom; causing the bed of the stream to gradually fill up until finally, a short time ago, the bed of the stream became so high that it was impossible to drain the plaintiff's land and consequently it became sobbed and worthless. The magnolia trees and other nursery plants were all killed by reason of the sobbing of the land which was caused by the building up of the bed of the creek, which was in turn caused by the dam in the river. Plaintiff sued the defendant for the injury to its land and for the value of the magnolia trees and other nursery plants which were killed.

The issue submitted to the jury was correct: (2). "Has the defendant, by the construction and operation of its dam, wrongfully caused the lands of the plaintiff to become flooded or sobbed, as alleged in the complaint?"

The Court below charged the jury, to which exceptions and assignments of error were duly made, as follows:

"A riparian landowner is entitled to have the waters of a stream to continue to flow by his lands in its usual channel and in its normal quantity and any unreasonable invasion of these rights by another riparian landowner gives rise to a cause of action proximately caused thereby.

"The Court further charges you that the right of a riparian landowner to the use of the water flowing by his premises in a natural stream and as an incident to the ownership of the soil and to have it flow by his lands in its usual channel and in its normal quantity has been recognized in this State for over a century. This does not mean that a riparian landowner on a non-navigable stream actually owns the running water, but he has the reasonable use of it so long as he does not substantially and unreasonably invade the rights of other riparian owners.

"The Court further instructs you that in determining the right of an upper riparian owner, the question is whether the lower riparian proprietor is engaged in a reasonable exercise of his right to use the stream as it flows by, through or to his lands, whether with or without retaining the water for a time or obstructing temporarily the accustomed flow.

"Every riparian landowner has a property right to the reasonable use of running water for manufacturing purposes as well as for domestic and agricultural purposes conformable to the uses and needs of the community, qualified only by the requirement that it must be enjoyed with reference to similar rights of other riparian owners, above and below.

"The Court further instructs you as to what constitutes a reasonable use is a question of fact for the jury to determine, having due regard to the subject matter and the use; the occasion and manner of its application; its object and extent and necessity; the nature and size of the stream; the kind of business to which it is subservient; the importance and necessity of the use claimed by one party and the extent of the injury caused by it to the other party.

"So, Gentlemen of the jury, a lower riparian owner may not erect a dam or operate a dam or a plant and take or appropriate the property of an upper riparian landowner in whole or in part, without paying to it just compensation for the land taken or damage or both, and this is true, regardless of whether the lower riparian owner's use of the water is reasonable or not.

"Now, Gentlemen of the jury, the plaintiff does not contend in this case that the defendant's pond or lake or reservoir actually floods its lands, but contends that the defendant in the construction and unreasonable maintenance of its dam has proximately caused the velocity of the water in Broad River to be considerably reduced.

"The Court charges you that if you should find by the greater weight of the evidence that the defendant in the operation and construction of its dam at Caroleen in the exercise of its riparian rights made an unreasonable use of same as defined by the Court, thereby proximately causing the bed of the river to fill up with sand by reason of reducing the velocity of the water contained therein, and that this filling up of the river with sand, if you find it has filled up, proximately caused the fall in Puzzle Creek to be reduced and the bed of the creek to fill up, if you find it has filled up, proximately causing the water in the creek to overflow, flood and sob plaintiff's lands, proximately causing damages to said lands, you would answer the second issue Yes.

"The Court instructs you that if you should find from the evidence in this case that the defendant in the construction, operation and maintenance of its dam at Caroleen, North Carolina, has not made any unreasonable use of its riparian rights, as the Court has defined the law to you and explained what unreasonable use means, or if reasonable, has not taken in whole or in part any of plaintiff's land as the Court has heretofore instructed you, then you would answer the second issue. No. ***"

The trial Court by giving the instructions set out above committed reversible error because any one who constructs or maintains a dam which causes the property of an upper riparian owner to become flooded or sobbed is liable to such owner for any damage resulting from said flooding or sobbing regardless of whether the construction or operation of the dam was a...