Lake Drummond Canal & Water Co. v. Burnham

• Decision Date: 04 March 1908
• Parties: LAKE DRUMMOND CANAL & WATER CO. v. BURNHAM et al.
• Court: North Carolina Supreme Court

60 S.E. 650

147 N.C. 41

LAKE DRUMMOND CANAL & WATER CO. v. BURNHAM et al.

Supreme Court of North Carolina

March 4, 1908

Appeal from Superior Court, Camden County; W. R. Allen, Judge.

Injunction by the Lake Drummond Canal & Water Company against T. M Burnham and others, in which defendant filed a cross-complaint. From a judgment restraining defendants from interfering with plaintiffs' canal, and restraining plaintiffs from maintaining the banks of its canal at a greater height than at a certain prior time, plaintiff appeals. Reversed in part.

The original owner of a canal was authorized to open up a cross canal to draw water from a lake. The cross canal was constructed; but the successor of the original owner concluded that the waters of the lake were no longer needed and stopped the mouth of the cross canal, causing the waters of the lake to flow in their natural direction, and affecting the lands of defendants, which were several miles from either canal, and naturally drained in an opposite direction. The cross canal had existed for over 40 years, and protected defendants' lands to some extent by directing the overflow waters from the lake into the main canal. Held, that the canal company could not be enjoined from changing the condition of the banks from what they were at a time 9 years prior thereto, since, where an upper proprietor constructs and maintains on his own premises for his own convenience a structure affecting the flow of water which invades no right of the lower proprietor, and is for a temporary purpose which may be abandoned at any time, the lower tenant acquires no right to a continuance of the structure resting merely on prescription, for an easement by prescription can only be established by adverse possession or continuous invasion of another's right.

The action was instituted by plaintiffs to restrain a number of defendants from alleged wrongful injury to plaintiffs' canal, and there was evidence offered tending to show "the plaintiff owns the canal formerly known as the 'Dismal Swamp Canal,' extending from the Elizabeth river, in Virginia, to the Pasquotank river, in North Carolina, and is a highway of public travel for steamboats barges, tugs, and other craft plying between the waters of North Carolina and the waters of Virginia. There is another canal, called the 'Cross Canal,' which runs at right angles from a point about 30 feet from the other canal westwardly into Gates county about 20 miles. The defendants own in severalty valuable lands, which lie from 3 to 7 miles below the said Cross Canal, none of which drain in or towards the Cross Canal. In 1897 the plaintiff company enlarged and deepened the Dismal Swamp Canal, and for the protection and improvement of the same thus enlarged, the plaintiff widened and raised the banks of that canal, and the banks so raised and broadened remained as they were from 1897 to June, 1906. In June, 1906, the defendants, claimed to be injured by the raising and broadening of the said banks at the Cross Canal, cut through same between the head of the Cross Canal and the Dismal Swamp Canal, a distance of 30 feet or more, and turned the water from the said Cross Canal, and the swamps which drain into it, into the Dismal Swamp Canal, and as a result of such cutting turned into it sand, mud, and débris to such an extent as after 12 hours to so fill it that one could walk out into the canal 43 feet from its banks dry-shod for a distance of about 72 feet along the banks. The plaintiff filled up the cut which had been made, and dredged out the said filling, but the defendants threatened at once to open the same again, and were about to do so when enjoined by this court." Defendants answered, making denial of some of the material allegations of the plaintiffs, and by way of counterclaim made further answer, as follows: "(1) That they are the owners and in possession of large quantities of land and growing crops lying on what is known as Corapeake or Cross Canal, which empties into the Dismal Swamp Canal about 5 miles northwest of the town of South Mills, in Camden county; (2) that said Cross Canal is 12 miles long and between 10 and 20 feet wide, and is the main and only drain for their said lands, and has been for the past 75 or 100 years, long before the plaintiff herein acquired any interest whatever in the Dismal Swamp Canal; (3) that during the latter part of March, or first of April, 1906, the Lake Drummond Canal & Water Company, by its agents and servants, went to the mouth of said Cross Canal, and with a steam shovel did willfully and unlawfully fill up the mouth of said Cross Canal, thereby stopping all flow through said Cross Canal, and ponding the water on the lands and crops of the defendants herein, utterly destroying the crops of the defendants, and greatly damaging the lands herein mentioned, paying nothing to the defendants by way of condemnation or otherwise; (4) that defendants herein were preparing to reopen said Cross Canal when the general superintendent of the plaintiff, one J. B. Baxter, through the captain of plaintiff's dredge, requested that they not reopen said Cross Canal, that he would have his company do so immediately, and place a culvert there, upon which promise defendants refrained from opening said Cross Canal, and were later served with a restraining order forbidding them from reopening it at all; (5) that plaintiff has never made any attempt whatever to put in said culvert or otherwise open said Cross Canal, and that the lands and crops of the defendants are, and have been for many weeks past, entirely covered with water because of the damming of said Cross Canal by the plaintiff herein; (6) that by reason of such unlawful damming of Cross Canal by the plaintiff, and the consequent ponding of water on defendants' lands, the crops of the defendants have been injured to the extent of $15,000, that the lands have already been greatly damaged, and that if said Cross Canal is not opened immediately the ponded water on the defendants' lands will cause said lands to sour and to become absolutely worthless for any use whatever, which lands before the ponding of the water thereon by the plaintiff, as herein set out, were worth not less thon $37,000; (7) that the cause of action set out in this answer in the defendants' cross-bill arose prior to the bringing of this action." Plaintiffs made formal reply denying material allegations of counterclaim. Various issues were submitted as determinative of the rights of the parties, and as to the amount of damages suffered by defendants. The court set aside a verdict for defendant on these issues as to damages, and on the other issues gave judgment restraining defendants from further interference with plaintiffs' canal, and restraining plaintiffs from "maintaining the banks of its canal and the canal of plaintiffs at a greater height than in 1897, before same was increased." From this judgment, plaintiffs, having duly excepted, appealed.

Pruden & Pruden and Aydlett & Ehringhaus, for appellant.

Ward & Grimes and W. A. Worth, for appellees.

HOKE J.

The fifth issue, and the response of the jury thereto, are as follows: "(5) Have the defendants, or either of them the right and easement to drain into the canal of plaintiffs, or into the Cross Canal? Ans. No." There is no fact or finding of the jury which in any way changes or impairs the force and effect of this verdict, and the court is of opinion that it is thereby conclusively determined that the defendants are not entitled to the relief awarded them, and to this extent the judgment of the court below must be...