Hall v. Turner

• Decision Date: 22 March 1892
• Citation: 14 S.E. 791,110 N.C. 292
• Parties: HALL et al. v. TURNER et al.
• Court: North Carolina Supreme Court

14 S.E. 791

110 N.C. 292

HALL et al. v. TURNER et al.

Supreme Court of North Carolina

March 22, 1892

Appeal from superior court, Orange county; ROBERT W. WINSTON, Judge.

Action by W. L. Hall, as administrator of Lambert W. Hall, deceased and others, against Emma Turner, as administratrix of Evans Turner, deceased, and others. Judgment for defendants. Plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by SHEPHERD, J:

The plaintiffs, the administrator, widow, and heirs at law of Lambert W. Hall, allege that the said Lambert W. Hall and Evans Turner, on the 13th of March, 1873, entered into the following agreement, to-wit: "Articles of agreement made and entered into this the 13th day of March, 1873, between L W. Hall, of the county of Orange, and state of North Carolina, of the one part, and Evans Turner, of the county and state aforesaid, of the other part, witnesseth, that the said L. W. Hall agrees and consents for the said Evans Turner to back water, if necessary, up into his field, on condition that said Evans Turner will allow the said L. W. Hall as much woodland along the line fence on the south side of the river. Said Turner is allowed to raise a dam 8 or 9 feet high. This agreement to remain good so long as the said Turner keeps up a mill at the Wagoner place; afterwards to be null and void. Witness our hands and seals the day and date above written. [Signed] L. W. HALL. [Seal.] EVANS TURNER. [Seal.] Witness. H. Y. HARRIS." The complaint further alleges that, at the time of the execution of said agreement, about 4 or 5 acres of woodland of said Turner were taken possession of by said Hall, and that he used the same until his death, in 1888; that said Turner, after the adoption of the stock law in 1885, hauled off all the fences on said 4 or 5 acres, and that the same were mortgaged in 1882 to one Gray; that the dam raised by Turner is, from the bottom of the mud-sill to the top of the sheeting, 10 feet 3 inches, and from the mud-sill to bottom of the river about 2 feet, and the land of the plaintiff which is flooded and damaged by said mill-pond is about 12 acres, on most of which dower has been assigned to the plaintiff Fannie J. Hall; that the same would be very productive if not damaged by the said flooding; that plaintiffs have not continued in the possession of the 4 or 5 acres south of the river since the death of Evans Turner. They demand judgment--(1) that "the license granted in said agreement" terminated at the death of said Turner in 1889, and is void for uncertainty and indefiniteness, and is no longer operative and binding on the plaintiffs; (2) that, if it be considered as running with the land, the quantity of land damaged be ascertained, and the same quantity set apart to the plaintiffs south of the river, if said dam shall not exceed the height allowed in said agreement; (3) that, if said dam be found to be more than nine feet high, then they ask that the damages be inquired into, and for judgment for the same; (4) that, if plaintiffs are compelled to take the land south of the river in lieu of that flooded and damaged, the defendants be required to free the same from all mortgages and incumbrances existing thereon; (5) that the lands of plaintiffs be freed from said agreement, and the defendants keep the land on the south side of the river; (6) "that the dam be pulled down, and plaintiffs be paid all damages done them during the life of said Turner by reason of his violations of said agreement and since that time by reason of said dam;" (7) that all damages up to the time of the trial be assessed; (8) for further and other relief, and for costs. The defendants, in their answer, admit the execution of said agreement, and that the land on the south of the river, mentioned in the complaint, was taken possession of by Hall, but they allege that the quantity is underestimated, and that the same is equal to that covered by water in consequence of said dam. They deny the removal of the fences. They admit the execution of the mortgage. They deny the raising of the dam to the height alleged by plaintiffs. They deny any damage as alleged, and aver that, if there be any, it existed and was provided for at the time of the execution of the said agreement, by the taking possession of the four acres. They deny that the plaintiff has discontinued the use of said land since the death of Evans Turner. They deny any violation of said agreement by said Turner or themselves, and they claim that said agreement operates as a covenant running with the land.

The following issues were, without objection, submitted to the jury: "(1) Has the dam been raised above nine feet? Answer. No. (2) If so, what yearly damages have the plaintiffs sustained on account of same? (3) What quantity of land is covered by water ponded back by the dam, and damaged thereby? (4) What quantity of land is embraced in the tract agreed to be conveyed by Evans Turner to plaintiffs' intestate? A. Four acres, (by consent.)"

R. N. Hall, Jr., testified that he had accurately measured the height of the dam in the summer of 1890, assisted by S. H. Jordan, since dead, and that it averages 10 feet high all the way through,--a little lower for a small distance on the south than the rest of the way,--and was highest in the center of the current in the stream; that the mud-sill was raised a foot above the bed of the river, making the actual height of dam from bed of river 11 feet; that the length of the dam is 133 feet 8 inches; that the damage to the land of plaintiffs yearly from the raising of the dam above 9 feet would be $30; that 12 acres were under water, or sobbed from the ponding back. H. Y. Harris also testified to same amount of damage from the dam being above 9 feet; that a dam at 9 feet would do little damage, and not cover more than 4 or 5 acres. C. R. Miller testified that he and R. N. Hall, Jr., had recently measured the height of the dam, and it was about 10 feet high, and that the mud-sill was 1 foot above the bed of the river, making the actual height of the dam 11 feet, and that the yearly damage from the erection of a dam above 9 feet, to land of plaintiffs, was $30. Defendants introduced one A. M. Leathers, who testified that the dam was 8 feet high, measured by him and others in 1890, in July. Other witnesses testified as to the benefit of the dam to the land of plaintiffs, and that the lands were not damaged by being covered with water in times of freshet, and as to the value of the land,--about 4 acres,--which intestate had formerly used, belonging to defendant's intestate, and that in the trade the deceased Hall got the better of the deceased Turner. One witness also stated that the land covered by water was not as much as 10 acres. Defendant Emma Turner stated she had the dam repaired since the death of Evans Turner, but it had not been raised above what it was before. Other witnesses stated that they were present when Leathers measured the dam, and saw him measure it, in July, 1890. William F. Gray, witness, testified that he assisted A. M. Leathers by putting down the tape line on the dam every 10 feet, and on paper the figures which he called out, and also stated that the portion of the dam which A. M. Leathers made 9 feet 5 inches high extended for 20 feet in the center of the stream, but the dam was lower on each side of this; that the dam did not average more than 7 or 8 feet in height. A. M. Leathers also stated the same. There was also testimony that Evans Turner, in 1885, hauled up the fence around the land.

Counsel for plaintiffs, in his argument, contended that the evidence in the case, both for plaintiffs and defendants, showed that a dam had been erected above 9 feet, and the admission of the defendant's witnesses that the dam was over 9 feet at two different points, one of them extending a distance of 20 feet in the center of the current, was of itself sufficient to decide the first issue in the affirmative. His honor, in his charge to the jury, stated to them that he did not agree with the argument of the plaintiffs' or defendants' counsel respecting the rule, and charged the jury as follows "In this case, four issues are submitted to you for your consideration. It is agreed, gentlemen, by counsel for both plaintiffs and defendants, that under the agreement dated 13th March, 1873, between L. W. Hall and Evans Turner, said Evans Turner could erect a mill-dam not exceeding nine feet in height. So the court presents to you the first issue,--is the present dam higher than nine feet? In considering this issue, which is one of fact for you, you will recall all the evidence bearing on the same. [Which the court proceeds to recapitulate.] There is no evidence that the mill-dam at present existing is not of uniform height, and hence the court gives you the following rule to guide you in determining whether the said dam is over or under nine feet high, to-wit: By a dam nine feet high is meant such a dam as, under given circumstances, will pond the same quantity of water that a dam exactly and uniformly nine feet high, under the same circumstances, would pond. [Exception by plaintiff.] Therefore, you will ascertain from the evidence whether the dam that now stands ponds back, on account of its increased but broken height, (if you shall find that it has been increased in height,) but not on account of any filling up of the bed of the pond and tightening or improving the dam, except by raising more water,--that is, a greater volume of water,--than a dam of uniform height of nine feet would do. If so, you will answer the first issue, 'Yes;' otherwise, 'No.' If you answer the first issue, 'No,' you need not answer the other issues at all. If you answer it, 'Yes,' you will next consider what amount of damage ...