Pendergrast v. Aiken, 48

CourtUnited States State Supreme Court of North Carolina
Citation293 N.C. 201,236 S.E.2d 787
Decision Date23 August 1977
Docket NumberNo. 48,48
PartiesJ. W. PENDERGRAST and wife, Catherine W. Pendergrast v. R. C. AIKEN and wife, M. E. Aiken, W. L. Aiken and Perry Alexander Construction Company.

Gudger, McLean, Leake, Talman & Stevenson by Joel B. Stevenson, Asheville, for plaintiffs-appellants.

Morris, Golding, Blue & Phillips by Steven Kropelnicki, Jr. and William C. Morris, Jr., Asheville, for defendants-appellees.

HUSKINS, Justice:

Plaintiffs assign as error the failure of the trial judge to instruct the jury correctly on the law arising from the evidence. By this assignment plaintiffs present three questions for consideration: (1) Did the court err in its original charge by framing its instructions in terms of nuisance? (2) Did the court err in its instruction to the jury that it must first determine whether defendant created a nuisance and then decide whether plaintiffs were harmed thereby? (3) Did the court err in its supplemental instructions regarding the effect of the two 24-inch culverts installed by the City under Allen Avenue? We shall consider these questions seriatim. Since their resolution lies in determination of applicable law, we commence by examining the development and status of the law governing drainage of surface waters. In that connection we first delineate the scope of the term "surface water," a term which has caused some confusion in the past.

Many jurisdictions have classified drainage problems according to whether the water drained (1) is composed of spring water, rain or snow melt spreading over the land without pattern or order, i. e., "diffused surface water," or (2) travels a clearly defined channel and hence is a watercourse. See e. g., Garbarino v. Van Cleave, 214 Or. 554, 330 P.2d 28 (1958). Based on such classification some courts have applied different rules of law. 5 R. Clark, Waters and Water Rights § 450.5 (1972). We see no basis for such a distinction. "What difference does it make, in principle, whether the water comes directly upon the field from the clouds above, or has fallen upon remote hills, and comes thence in a running stream upon the surface, or rises in a spring upon the upper field and flows upon the lower." Gormley v. Sanford, 52 Ill. 158 (1869).

Such technical distinctions have unnecessarily complicated the analysis of drainage problems, masking the truly critical issues. Hence, in the past this Court, for purposes of analyzing drainage problems, has combined diffuse surface waters, watercourses and overflow waters from the ocean into the broader category of surface waters. Compare Davis v. R. R., 227 N.C. 561, 42 S.E.2d 905 (1947), with City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E.2d 231 (1973), and Midgett v. Highway Commission, 260 N.C. 241, 132 S.E.2d 599 (1963); accord, Clark, supra § 450.5. We approve of this method of analysis and adhere to it. With this definition of "surface waters" in mind, we now discuss the various legal rules applicable to surface water drainage.

American courts have developed three distinct doctrines governing the disposal of surface waters. The first, the common enemy rule, states substantially that "(s)urface water is recognized as a common enemy, which each proprietor may fight off or control as he will or is able, either by retention, diversion, repulsion, or altered transmission; so that no cause of action arises from such interference, even if some injury occurs, causing damage." Borchsenius v. Chicago, St. P., M. & O. Ry. Co., 96 Wis. 448, 71 N.W. 884 (1897); Clark, supra § 450.6; see Annot., 59 A.L.R.2d 421 (1958). Grounded in the maxim cujus est solum, ejus est usque ad coelum et ad inferos (whose is the soil, his is even to the skies and to the depths below), the doctrine is based on two concepts: "(1) the necessity for improving lands with the recognition that some injury results from even minor improvements, and (2) philosophical preference for freedom of each landowner to deal with his own land essentially as he sees fit." Clark, supra § 451.1. Despite these laudable goals the rule created many problems. In the words of one commentator: " . . . landowners are encouraged to engage in contests of hydraulic engineering in which might makes right, and breach of the peace is often inevitable." Maloney and Plager, Diffused Surface Water: Scourge or Bounty?, 8 Nat.Res.J. 73 (1968); accord, Butler v. Bruno, 115 R.I. 264, 341 A.2d 735 (1975). The extreme consequences occasioned by strict application of the common enemy rule soon led many courts to adopt modifications based upon concepts of reasonable use or negligence. Note, Disposition of Diffused Surface Waters in North Carolina, 47 N.C.L.Rev. 205 (1968); e. g., Stacy v. Walker, 222 Ark. 819, 262 S.W.2d 889 (1953); Mason v. Lamb, 189 Va. 348, 53 S.E.2d 7 (1949). While courts have couched modifications of the common enemy rule in different language, the principle in substance is that a landowner is privileged to use and improve his land for proper purposes even though the natural flow of surface water is thereby altered so long as he uses reasonable care to avoid causing unnecessary harm to others. Kinyon and McClure, Interferences with Surface Waters, 24 Minn.L.Rev. 891 (1940), and cases cited.

The second doctrine, commonly called the civil law rule, is, in its purest form, opposed to the common enemy rule. Based on the quoted maxim aqua currit et debet currere, ut currere solebat (water flows and as it flows so it ought to flow), the civil law rule subjects a landowner to liability whenever he interferes with the natural flow of surface waters to the detriment of another in the use and enjoyment of his land. Kinyon and McClure, supra. Various rationales have been advanced in support of this rule. Many courts have simply felt that, as it was necessary to have some rule establishing rights and duties in regard to surface water disputes, it was reasonable and just to follow the law of nature. It was said early in Gormley v. Sanford, supra, that "(a)s water must flow, and some rule in regard to it must be established where land is held under the artificial titles created by human law, there can clearly be no other rule at once so equitable and so easy of application as that which enforces nature's laws. There is no surprise or hardship in this, for each successive owner takes whatever advantages or inconveniences nature has stamped upon his land." Other courts have chosen the civil law rule in order to avoid the element of contest or force inherent in the common enemy rule. Mayor of Albany v. Sikes, 94 Ga. 30, 20 S.E. 257 (1894).

Nevertheless, since almost any use of land involves some change in drainage and water flow, courts have found that a strict application of civil law principles discourages proper improvement and utilization of land. Thus courts have modified the rule to permit the reasonable use of land. See Annot., 59 A.L.R.2d 421 (1958). For the most part such changes have been piecemeal responses to specialized situations. One modification frequently found in civil law jurisdictions arises when one owner discharges surface waters on the lands of another by artificial means. Faced with this situation courts have often held, with minor variations, that the upper owner may deposit surface water by artificial means into a natural drainway even though the amount of water flowing into adjoining land is thereby increased. E. g., Lambert v. Alcorn, 144 Ill. 313, 33 N.E. 53 (1893); Miller v. Hester, 167 Iowa 180, 149 N.W. 93 (1914); Mizell v. McGowan, 120 N.C. 134, 26 S.E. 783 (1897).

Some courts, however, have announced more general modifications. The Maryland court at one time fashioned a special hardship rule, stating: "(A) strict application of (the civil law rule) also might result in very great hardship on the lower land owner, who would thereby be prevented from improving his land or using it as he would otherwise have a right to use it. In cases where such hardship would necessarily ensue to one or the other of the owners, courts have sometimes adopted what may be called a 'reasonableness of use' rule. . . . The case before us presents a state of facts in which the rule of reasonableness of use is applicable." Whitman v. Forney, 181 Md. 652, 31 A.2d 630 (1943).

Perhaps the most comprehensive modification of the civil law rule was undertaken in the California case of Keys v. Romley, 64 Cal.2d 396, 50 Cal.Rptr. 273, 412 P.2d 529 (1966). There the court noted that California traditionally adheres to the civil law rule, yet observed that:

" . . . (N)o rule can be applied by a court of justice with utter disregard for the peculiar facts and circumstances of the parties and properties involved. No party, whether an upper or a lower landowner, may act arbitrarily and unreasonably in his relations with other landowners and still be immunized from all liability.

It is therefore incumbent upon every person to take reasonable care is using his property to avoid injury to adjacent property through the flow of surface waters. Failure to exercise reasonable care may result in liability by an upper to a lower landowner. It is equally the duty of any person threatened with injury to his property by the flow of surface waters to take reasonable precautions to avoid or reduce any actual or potential injury.

If the actions of both the upper and lower landowners are reasonable, necessary, and generally in accord with the foregoing, then the injury must necessarily be borne by the upper landowner who changes a natural system of drainage, in accordance with our traditional civil law rule."

The third doctrine of surface water disposition is known as the reasonable use rule. Briefly, this rule allows each landowner to make reasonable use of his land even though, by doing so, he alters is some way the flow of surface water thereby harming other landowners. Liability is incurred only when this harmful...

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