Geer v. Durham Water Co

• Decision Date: 19 December 1900
• Citation: 37 S.E. 474,127 N.C. 349
• Court: North Carolina Supreme Court
• Parties: GEER. v. DURHAM WATER CO.

127 N.C. 349

37 S.E. 474

GEER.

v.DURHAM WATER CO.

Supreme Court of North Carolina.

Dec. 19, 1900.

WATERS AND WATER COURSES—DIVERSION— DAMAGES—INSTRUCTIONS — PRESCRIPTION — LIMITATION OF ACTIONS.

1. In an action by a riparian owner for damages resulting from the unlawful diversion of water in a river, it is error to give instructions submitting the question of damages sustained by reason of the "uneven and irregular flow" of the water, when there is no allegation in the complaint as to the "uneven and irregular Mow."

2. While the taking of water out of a river by a corporation organized to supply a city with water is not, in its strictest sense, an easement, it is so nearly in the nature of an easement as to require a continuous and adverse user for 20 years to raise the presumption of a grant.

3. The taking of water out of a river by a corporation organized to supply the city with water being in the nature of an easement, for which permanent damages may be awarded to a riparian owner who is injured thereby, the awarding of such damages is equivalent to the acquisition of the easement by condemnation.

4. The unlawful diversion of water in a river is not a trespass on realty, within Code, § 155, as amended by Laws 1895, c. 165, requiring actions for a continuing trespass to be brought within three years after the original trespass.

5. Whether a witness is an expert is a preliminary fact to be found by the trial court and, when there is any evidence to sustain such finding, it is conclusive on appeal.

Appeal from superior court, Durham county; Moore, Judge.

Action by F. C. Geer against the Durham Water Company. From a judgment for plaintiff, defendant, appeals. Reversed.

Winston & Fuller, for appellant.

Manning & Foushee and Boone, Bryant & Biggs, for appellee.

DOUGLAS, J. This is an action brought by a lower riparian owner for damages resulting from the unlawful diversion of water, seriously interfering with the running of his mill, and greatly lessening its productive capacity. Long after the establishment of the plaintiff's mill the defendant organized for the purpose of supplying water to the city of Durham, constructed a dam across Enoe river-above the plaintiff's mill, and also a dam across Nancy Rhodes branch, a tributary of said river. The branch was used for its water supply, while the river was used to run Us pumps when there was a sufficient flow. Some little water was taken directly from the river when needed, but not regularly; the main diversion being the water pumped from the branch, that would otherwise have flowed into the river. The plaintiff contends that he is entitled to recover for damages arising not only from the unlawful diversion of the water, but also from its improper use In running machinery too great for the power of the river. The defendant contends, on the other hand, that the only cause of action set out in the complaint is the unlawful diversion, and in this we think it is correct. But the plaintiff again says that, even admitting this to be true, the diversion, being an unlawful act, renders the defendant liable for every other act connected therewith; that is, that, as the defendant had no right to divert the water from the branch flowing into the river, he had no right to use the river for the purpose of accomplishing such diversion, and that the allegation of unlawful diversion in the complaint was sufficient to include every act connected therewith, including the "uneven and irregular flow" caused thereby. The nature of the respective damages claimed by the plaintiff more clearly appears from the following extract from his elaborate brief: "The effect of defendant's use and diversion of the water of the Nancy Rhodes branch and Enoe river Is seen at plaintiff's mill in two ways: (1) In a gradually diminishing flow of water; (2) in an uneven and irregular flow. The first is, of course, caused by the diversion of an increasing quantity of the water naturally flowing in and forming a part of Enoe river, which is not returned to the river. The second is caused by the following facts, to wit: The turbine wheels of the defendant, being so large, and taxing to the utmost, if not overburdening, the capacity of the river to operate them, require a very large quantity of water for their operation, and when they are running they discharge a quantity of water from defendant's pond largely in excess of the flow of the river, and this causes a flood of water at plaintiff's mill more than he can use or hold, and goes to waste; and when defendant stops its wheels to enable its pond to be filled, and furnish it the required power to operate its wheels to force the water to a reservoir, its dam being very tight, very much less water flows down the river than is the natural and accustomed flow. The uneven and irregular flow is caused by the use of the wheels to divert the water from the branch and the river, and is an integral and inseparable part of its system and operation as now used, and as used since the construction of its works." If this statement had been in the complaint instead of the brief, it would have presented a different question, but there is no allegation whatever as to the "uneven and irregular flow." If this were merely an evidentiary fact, as claimed by the plaintiff (that is, a fact used merely to prove or explain the main allegation of unlawful di version), the plaintiff might be correct It must be either a mere evidentiary fact, upon which no...