Long v. Swindell

• Decision Date: 30 June 1877
• Citation: 77 N.C. 176
• Court: North Carolina Supreme Court
• Parties: SANFORD A. LONG v. DICKERSON SWINDELL, CORNELIUS SWINDELL, SOLOMON F. SWINDELL, RICHARD C. WINDLEY and GEORGE CREDEL.

77 N.C. 176

SANFORD A. LONG

v.DICKERSON SWINDELL, CORNELIUS SWINDELL, SOLOMON F. SWINDELL, RICHARD C. WINDLEY and GEORGE CREDEL.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION for Damages for Breach of Covenant, tried at Spring Term, 1877, of HYDE Superior Court, before Eure, J.

The case made by the pleadings and verdict of the jury was this:

On the 30th of April, 1855, the plaintiff owned a certain piece of land, through which a ditch ran from Mattamuskeet Lake, to a canal which ran through a piece of land then the property of one Stanley, called the McCauley land, to the head of Wysocking Creek.

The plaintiff had acquired a right to drain his land into this canal. Jones Boomer was seized in fee of a piece of land adjoining the plaintiff's on the west, and John W. Litchfield, of another piece west of, and adjoining the Boomer land. On the said day the plaintiff made and delivered to Boomer and Litchfield a deed as follows;

“This indenture made and entered into this the 30th day of April, 1855, between Sanford A. Long of the one part, and Jones Boomer and John W. Litchfield of the other part, all of the County of Hyde and State of North Carolina, witnesseth; Whereas the said Long, Boomer and Litchfield, at the time of sealing and delivery of these presents, are respectively seized in fee of adjoining tracts of land; and whereas the said Boomer and Litchfield having no convenient and effective drain to their lands without crossing over and through the lands of the said Long, and the said Long being willing in the spirit of good neighborhood to grant a privilege therefor on certain conditions, reservations and limitations; and whereas the said Long has a personal privilege of a canal or drain, through the lands of Edward Stanly, to the head of Wysocking Creek, not granted to others; now if the said Boomer and Litchfield, shall procure from the owners of the said land, a right of drain or ditch from the southern terminus of my Lake canal, then through to the head of Wysocking Creek, of sufficient width and compass to discharge and carry off all the water which may be forced down the drains hereinafter granted them through my own land, and shall in conjunction with myself, cut out and keep open said canal leading into Wysocking Creek--the said Boomer performing three-sevenths of the labor necessary thereto, the said Long three-sevenths, and the said Litchfield one-seventh--and shall at all times when necessary perform their share of said work, and in default thereof, pay to the other parties performing it, the value of their share of the labor, which value is to be adjudged and assessed by three disinterested parties chosen for that purpose:

Then this indenture witnesseth, that the said Long, for divers good and sufficient considerations, and more especially for the consideration of five dollars to me in hand paid by the said Boomer, and the further sum of five dollars to me in hand paid by the said Litchfield, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, the said Sandford A. Long hath bargained, granted, sold, released and confirmed, and by these presents, doth bargain, grant, sell, release and confirm unto the said Jones Boomer, his heirs and assigns, the right to cut and keep open, a drain way or ditch of six feet in width, through that tract of land now owned by me, under the purchase from Francis A. McCauley, known as the McCauley land, said drain or ditch to commence where said Boomer's land (whereon he now lives) intersects and corners at its southern point with my line, and where he has now a ditch, and running with the old ditch to where it intersects with my leading canal from the Lake, thence with the tract of said leading canal so as to leave a space of twenty-one feet in width on the east side thereof between said ditch and the line of George A. Selby to my south and back line.

And the said Sanford A. Long hath bargained, granted, sold, released and confirmed, and doth hereby grant, bargain, sell, release and confirm to the said John W. Litchfield, his heirs and assigns, the right to cut and keep open a ditch or draining way of six feet in width, from the point where the land (whereon he now lives) intersects with the back line of my McCauley land, and running thence with said back line to where it will empty into the ditch or privilege granted to Jones Boomer, saving and reserving to myself, my heirs and assigns, the right and privilege of draining any and every portion of my said lands into either one, or both, of said ditches, whether that under the grant to Jones Boomer, or to John W. Litchfield. To have and to hold the privilege of drain herein granted to the said Boomer and Litchfield, their heirs and assigns, as an appendage each to the tracts of land on which they now live and no other.

And the said Boomer for himself, his heirs and assigns doth covenant to and with said Long, his heirs and assigns, that he will keep open the said ditch at his own proper costs and charges, and that he will at all times perform such work thereon as may be necessary to keep said ditch in proper repair.

And the said Litchfield for himself, his heirs and assigns doth covenant to and with said Long, his heirs and assigns, that he will in cutting said ditch throw up a bank on the nothwest side thereof of sufficient height and width to operate as a permanent barrier or dam against the back water, and that he will at all times keep such dam in permanent and sufficient repair at his own proper costs and charges.

And the said Long doth hereby covenant to and with the said Boomer and Litchfield, their heirs and assigns, that they shall, and lawfully may, at any and all times, peaceably and quietly use, occupy and enjoy the rights of drain hereby granted, and that they shall for that purpose, have a right to pass over my said lands free and unmolested by me, my heirs and assigns.

In testimony whereof I have hereunto set my hand and seal, day and date above written.

S. A. LONG, [Seal.]

Signed, sealed and delivered in presence of Robert Jennett and N. Beckwith.”

This deed was not executed by either Boomer or Litchfield.

Afterwards, viz; in 1859, Litchfield conveyed his piece of land to Marcus Swindell, who devised it to Dixon Swindell, one of the original defendants, and died in 1864. In May, 1855, Boomer conveyed his piece of land to Marcus Swindell, who devised the same to Cornelius Swindell and Solomon Swindell, two other of the defendants, and to David Swindell.

Solomon conveyed two-thirds of his estate to R. C. Windley, a defendant.

The estate of David Swindell was sold under execution, and purchased by the defendant George Credle, and was afterwards conveyed to Cornelius Swindell, a defendant.

Neither Boomer, nor Litchfield, nor any of their assignees ever procured a right to drain their respective lands into the Stanly (or McCauley) canal. Nor have any of them ever enlarged the said Stanly canal.

Nevertheless, the said Marcus Swindell while he owned the Boomer land, cut a ditch on the route on which a right to cut a ditch six feet wide had been granted to said Boomer, by the deed of April 30th, 1855, which ditch either was originally cut by him, or soon after his death was enlarged by some of his assignees, to the width of ten feet?? and was continued of that width to the commencement of the action.

Litchfield, or Marcus Swindell his assignee, while owning the Litchfield land, cut a ditch from the western boundary of that land through the same, to meet the ditch aforesaid through the Boomer land; and thus the water from both the Boomer and Litchfield lands was poured into the ditch of the plaintiff; and the outlet being insufficient to discharge the waters so brought down, the plaintiff's land was overflowed and injured.

The defendants, assignees as aforesaid, continued up to the time of the bringing of the action, to use and enjoy the ditches cut as aforesaid through the Boomer and Litchfield lands.

The plaintiff claimed damages for the injury, and also moved for an injunction to restrain the defendants from flowing water from their lands into plaintiff's ditch.

Several issues were submitted to a jury, and the substance of their findings is incorporated in the preceding statement.

They found separate...