Hocutt v. Wilmington & W.R. Co.
| Decision Date | 21 March 1899 |
| Parties | HOCUTT et al. v. WILMINGTON & W. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Pender county; Adams, Judge.
Action by W. B. Hocutt against the Wilmington & Weldon Railroad Company. On the death of plaintiff, his administrators, J. D Hocutt and another, were made plaintiffs. Judgment for plaintiffs, and defendant appeals. Affirmed.
Where a railroad diverted a water course by the construction of a ditch, it is liable for injuries to land caused by the overflow of a ditch dug by another connecting with the former ditch.
One digging a ditch through a natural water shed is liable as for a diversion of a water course, where, on the occurrence of an extraordinary freshet, a dam in another ditch breaks, and the waters flow some distance over a flat piece of ground, and then through the former ditch, and overflow and injure the land of another, where such injury would not have occurred but for the penetration of the water shed.
Junius Davis and Marsden Bellamy, for appellant.
Allen & Dortch and J. T. Bland, for appellees.
This is an action brought to recover damages arising from the flooding of land, caused, as alleged, by the unlawful diversion of water through the defendant's ditches. The action was originally brought by W. B. Hocutt, the owner of the land, who died during its pendency. Thereupon J. D Hocutt and E. McLendon, administrators of W. B. Hocutt, were made plaintiffs.
Before the call of the case the plaintiffs moved in this court to make the minor heirs of W. B. Hocutt parties plaintiff through their general guardian, J. D. Hocutt. This motion was proper, and was granted. After it was granted, the defendant moved to rescind this order on the ground that it created a misjoinder of parties, as well as of subject-matter, inasmuch as the damages for loss of crops would go to the administrators, while all the damage to the land itself belongs to the heirs. Had the administrators and the heirs originally brought a joint action for the loss of the crop, together with the permanent damage to the land, there might have been such a misjoinder; but such was not the case. Even if it had been, the defendant could have sustained its objection only by demurrer, as the error would appear from the face of the complaint. Finley v. Hayes, 81 N.C. 368; Silver Val. Min. Co. v. Baltimore, etc., Mining & Smelting Co., 99 N.C. 445, 6 S.E. 735; Hall v. Turner, 111 N.C. 180, 15 S.E. 1037; McMillan v. Baxley, 112 N.C. 578, 16 S.E. 845; Kiger v. Harmon, 113 N.C. 406, 408, 18 S.E. 515. The failure to demur would have been deemed a waiver of the objection. The defendant contends that, as the heirs were made parties plaintiff only in this court, it had no occasion to demur in the court below, and now avails itself of its first opportunity to demurrer tenus before us. We think the defendant has clearly waived its right to demur by its action in the court below. After the death of the original plaintiff, and the administrators' becoming parties, it demanded that the permanent damages to the land should be assessed. If, as it contends, and which we concede, such damages should go to the heirs, it ill becomes the defendant to object to the heirs becoming parties to an action in which it has demanded an adjudication of their rights. If there is any misjoinder of causes of action, it has been brought about by the defendant itself injecting into this case the issue of permanent damages. A defendant may demur to the complaint, but not to its own answer.
The defendant further contends that it should be granted a new trial because the damages have not been apportioned among the respective plaintiffs, and that a new lawsuit might otherwise become necessary between the plaintiffs themselves, in order to adjust their relative rights. We do not see how this contingency would concern the defendant. In one aspect, it is better for the defendant that the minor heirs should become parties, as they are thereby bound by the judgment, which will thus vest in the defendant the easement it has sought.
The plaintiffs allege that the defendant, in order to drain its roadbed and right of way, has cut deep ditches beside its road, whereby it diverts large volumes of water from its natural course and flow, and empties it into a small branch or flat bottom known as "Rattan Trestle" or "Jumping Run Branch"; that it has provided no sufficient outlet for such accumulated and diverted waters thereby causing the same to pond or back up and overflow the plaintiffs' land, whereby they and their intestate have been greatly damaged within the three years next preceding the action. The defendant files three successive answers, denying the cause of action, and alleging that the ditches are properly constructed, and have been used for more than 3 years before the bringing of this action, for more than 5 years, and for more than 20 years; that the railroad was built prior to the year 1840, and has since been in constant operation. In its final answer it "demands to have all permanent damages, if there be any, assessed in this action." Under our decisions, this turns the action into one for permanent damages, whatever may have been the original nature of the plaintiffs' claim. Parker v. Railroad Co., 119 N.C. 677, 25 S.E. 722; Nichols v. Railroad Co., 120 N.C. 495, 26 S.E. 643; Laws 1895, c. 224. It is difficult to see how permanent damages can be assessed in all cases where there is no permanent damage, and where the only injury results from causes that are not in their nature permanent, and may never again occur. But as the defendant demanded such an assessment, and as the case was tried upon that issue, we do not feel at...
To continue reading
Request your trial