Jenkins v. Wilmington & W.R. Co.

• Decision Date: 03 May 1892
• Citation: 15 S.E. 193,110 N.C. 438
• Parties: JENKINS v. WILMINGTON & W. R. Co.
• Court: North Carolina Supreme Court

15 S.E. 193

110 N.C. 438

JENKINS v. WILMINGTON & W. R. Co.

Supreme Court of North Carolina

May 3, 1892

Appeal from superior court, Martin county; CONNOR, Judge.

Action by William Jenkins against the Wilmington & Weldon Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

A railroad company has a right to cut ditches and conduct the surface water into a natural water course passing through its land, and, if this right is exercised in good faith and in a reasonable manner, for the better adaptation of the land to lawful and proper uses, no damages can be recovered if the lands of a lower owner are injured.

James E. Moore, for appellant.

Don. Gilliam, for appellee.

CLARK J.

The granting or refusal of the application for the jury to view the premises is a matter which rested in the discretion of the trial judge. On some occasions it may be very useful and, indeed, almost necessary. It was permitted on the trial of the Cluverius Case, 81 Va. 787, and there are many precedents elsewhere for such practice. It was allowed in this state without objection on the trial (for murder) of Gooch, (94 N.C. 987,) and it has been done in many other cases. On the other hand, it is most usually unnecessary for any good purpose, and would be productive of delay and expense, and, on occasions, possibly of irregularities. The matter is one which must be left to the sound discretion of the trial judge, by whom such motion should only be granted when it shall seem clear to him that it is required in the interest of justice. It is a practice not to be encouraged. In the present case it would seem that a map of the locality and the evidence of witnesses should have been amply sufficient to convey to the jury an intelligent comprehension of the entire contention of the parties.

The objections to the jurors were properly overruled. It was not a disqualification that a juror was a surety on the prosecution bond of another plaintiff, or related to such plaintiff, in another action against this defendant for a similar cause of action. The court below committed error in failing to put its charge as to the law in writing when requested, as here, in apt time. Code, § 414. The reason given by the court that, while it reduced nearly its entire charge to writing, it did not fully comply with the statute "because it was impracticable to put the whole charge in writing in the time within which it was necessary to conclude the trial," does not cure its failure to observe the requirement of the statute. If there was not time to do so the court could, in its discretion, have made a mistrial. The defendant had a right to insist on the entire charge as to the law being put in writing, either to the end that it should be handed to the jury on their retirement, (Acts 1885, c. 137,) or to avoid differences between counsel as to its purport in making up a case on appeal, though this does not require that the recapitulation of the evidence should be put in writing. Dupree v. Insurance Co., 92 N.C. 417; Drake v. Connelly, 107 N.C. 463, 12 S.E. Rep. 251; Lowe v. Elliott, 107 N.C. 718, 12 S.E. Rep. 383. As the case goes back for a new trial, it is but proper that we should notice some of the general principles which are applicable to this and similar causes. In doing this, we deem it unnecessary to refer to the multitude of conflicting decisions in other states upon this much debated subject. We are content to accept, in a great measure, the conclusion of such discriminating authors as Mr. Angell (on Water Courses) and others. First, we are of the opinion that in respect to the drainage or diversion of surface water a railroad company enjoys the same but no greater privileges than any other land owner, to be exercised under the same restrictions and qualifications; secondly, a railroad company or other land owner has a right to cut ditches and conduct the surface water into a natural water course passing through its land, and, if this right is exercised in good faith and in a reasonable manner, for the better adaptation of the land to lawful and proper uses, no damages can be recovered if the lands of a lower owner are injured. Mr. Angell (page 134) says: "No doubt the owner of land through which a stream flows may increase the volume of water by draining into it, without any liability to damages by a lower owner. He must abide the contingency of increase or diminution of the flow of water in the channel of the stream, because the upper owner has the right to all the advantages of drainage or irrigation, reasonably used, which the stream may give him." The foregoing passage is quoted with approval by the court of appeals of New York in Waffle v. Railroad Co., 53 N.Y. 11. The court says: "The authorities in this country and England upon this subject are collected and revised by the author, and clearly establish the right claimed by the defendant. Goodale v. Tuttle, 29 N.Y. 459; Rawstron v. Taylor, 11 Exch. 369; Gannon v. Hargadon, 10 Allen, 106; Miller v. Laubach, 47 Pa. St. 154. A proprietor having the right to reclaim his land by draining the surface water therefrom by ditches discharging into a stream running thereon which is the natural outlet of the water, the object of doing so, whether for the erection of buildings, agriculture, or constructing a railroad thereon, is wholly immaterial." The principles thus laid down are not only founded upon sound reasoning and natural justice, but they underlie the entire system of drainage as to surface water in North Carolina, and, if they are departed from because of a few "hard cases," (which are the "quicksands" of the law,) the evil results, by way of vexatious litigation among neighboring landowners, as well as by doubts and confusion as to their respective rights and liabilities, will be simply incalculable. It would amount to a revolution in the law, which for convenience, as well as a sense of justice, has been tacitly adopted and acted upon by them for a century or more. This right, however, must be exercised in a reasonable manner, and this must necessarily be determined in view of the particular circumstances of each case. For instance, if the stream is inadequate, and injury may result to a lower owner, the right to cut such ditches must be confined strictly to mere surface water, and the ditches must not be so constructed as to divert the surface water from a direction in which by the general inclination of the land it naturally flows.

Skillful farmers in the hill country, and in the mountains of our state, are...