Mizell v. Mcgowan

• Decision Date: 01 October 1901
• Citation: 39 S.E. 729,129 N.C. 93
• Court: North Carolina Supreme Court
• Parties: MIZELL. v. McGOWAN et al.

39 S.E. 729

129 N.C. 93)

MIZELL.

v.McGOWAN et al.

Supreme Court of North Carolina.

Oct. 1, 1901.

WATERS AND WATER COURSES—SURFACE WATERS—DIVERSION—DAMAGES—STATUTE.

1. Though a party may not divert the waters of a stream to the damage of another, he may accelerate and increase such waters, though by so doing another is damaged.

2. Code, c. 30, providing that persons owning swamp lands which cannot be conveniently drained or embanked except by cutting a canal or ditch or erecting a dam through or upon the lands of other persons may apply to the superior court, and further providing the mode of procedure, damages, etc., is not controlling as to damages for flooding lands of another where a party turns increased and accelerated but undiverted waters into a natural water course on her own lands by means of her own ditches, since such chapter deals with artificial water courses only.

Appeal from superior court, Pitt county; Hoke, Judge.

Action by W. G. Mizell against G. A. McGowan and others. Prom a judgment in favor of defendants, plaintiff appeals. Affirmed.

A. M. Moore, for appellant.

Skinner & Whedbee and Jarvis & Blow, for appellees.

DOUGLAS, J. This is an action for damages to the plaintiff's land from flooding alleged to have been caused by the improper and unlawful construction of ditches by the defendant This is the third time that It has been before this court, being reported in 120 N. C. 134, 26 S. E. 783, and 125 N. C. 439, 34 S. E. 538. The following are the issues and answers thereto: "(1) Is the plaintiff the owner and in possession of the lands described in the complaint? Ans. Yes. (2) Did Mrs. Laura A. McGowan wrongfully and unlawfully divert any water from its natural channel and discharge it upon the lands of the plaintiff, causing damage to same? Ans. No. (3) What damage, if any, has plaintiff sustained by reason of the wrongful diversion of said water? Ans. Nothing." We think these were the proper issues, and covered every contention left open to the plaintiff, in view of the opinions already rendered by this court in the case. We see no reason to depart from the rule we have laid down, and which may now be considered settled, that "neither a corporation nor an individual can divert water from its natural course so as to damage another. They may increase and accelerate, but not divert." Hocutt v. Railroad Co., 124 N. C. 214, 32 S. E. 681; Mizzell v. McGowan, 125 N. C. 439. 34 S. E. 538; Lassiter v. Railroad Co., 126 N. C. 509, 36 S. E. 48. The question of diversion was all that was left to the plaintiff, and that was submitted to the jury under instructions that appear to us without error. We are aware that great hardship may sometimes occur from the unlimited right of increase and acceleration, and that there are some authorities limiting it to the capacity of the natural outlet; but we must adhere to the rule as the result of our deliberate judgment. However short it may fall as a theoretical definition of ideal right, we can frame none better that is capable of practical application. Its limits are clearly defined by the natural landmark of the watershed, which, seen of all men, renders it easy of application and capable of definite proof. Any other rule would prevent the drainage of large bodies of swamp lands of...