Phillips v. Chesson

• Decision Date: 22 March 1950
• Docket Number: No. 164,164
• Citation: 231 N.C. 566,58 S.E.2d 343
• Parties: PHILLIPS, v. CHESSON et al.
• Court: North Carolina Supreme Court

Page 343

58 S.E.2d 343

231 N.C. 566

PHILLIPS, v. CHESSON et al.

No. 164

Supreme Court of North Carolina.

March 22, 1950

Hamrick & Hamrick, Sidney L. Truesdale, Rutherfordton, for plaintiff, appellee.

Jones & Davis, Forest City, for defendants, appellants.

SEAWELL, Justice.

With respect to surface water, the duties of owners of adjoining lands respectively on a different level are reciprocal and complementary. The lower land is servient to that on a higher level in the sense that it must receive the natural flow of surface water from the higher land; and the servient owner must dispose of it as best he can without in turn becoming an offender.

Here we are concerned with the duties of the owners or occupants of the land on the higher level. Such owners or occupants cannot divert the surface water or interfere with its natural flow by artificial obstruction or device so as to injure the premises of the servient owner without incurring actionable liability. Winchester v. Byers, 196 N.C. 383, 145 S.E. 774; Porter v. Durham, 74 N.C. 767, 779; Brown v. Southern R. Co., 165 N.C. 392, 395, 396, 81 S.E. 450.

The question whether more water or less water is caused to flow on to the lower land--which may be a factor bearing on liability,--is often by no means the most important. The manner of its collection and release, the intermittent increase in volume, and destructive force, its direction to a more vulnerable point of invasion, may often become important. Porter v. Durham, supra.

1. The evidence taken in the light most favorable to the plaintiff tends to show an infraction of legal duties on the part of the defendants in the diversion of surface waters on their own premises, resulting in damage to the servient owner and is legally sufficient to survive the demurrer.

2. The defendat challenges the validity of the trial on the ground that the court erred in the important matter of instructing the jury on the measure of damages. The objection is that he instructed them without any qualification that the proper measure of the damages was the difference in the market value of the land immediately before the injury and immediately afterwards. This the appellant contends is not applicable to a case in which temporary damages alone are demanded and allowable.

On the record the plaintiff's suit must be regarded and treated as an action for the recovery of temporary damages, and only damages of that nature may be awarded.

In his complaint he describes the damage as 'continuing' and 'recurrent,' and the evidence shows it to be typically of that character. (No distinction is made in the law between a continuing trespass which resolves into a nuisance, and other kinds of nuisance with respect to the legal consequences.)

The impermanent nature of the condition from which the intermittent or recurrent damage arises is recognized in the constitution of the case, since the plaintiff has concomitantly with his prayer for damages invoked injunctive relief for its abatement. The cause of the recurring damage, then, is one which may be removed by the voluntary action of the defendant, or abated by court action, if that should be adjudged appropriate. Plaintiff's remedy in a proceeding of this sort, between private parties, is by successive suits brought from time to time against the author of the nuisance as long as the noxious condition is maintained, in which he may recover past damages down to the time of the trial; Ridley v. Seaboard R.R. Co., 118 N.C. 996, 24 S.E. 730, 32 L.R.A. 708, not including subjects of prior adjudication. In this way it has been said (Ridley v. Seaboard R. R. Co., supra), the defendant's willingness to abate or remove the cause of damage may be stimulated when repeatedly mulcted in damages by reason of its continued maintenance. Winchester v. Byers, 196 N.C. 383, 145 S.E. 774; Eller v. City of Greensboro, 190 N.C. 715, 720, 130 S.E. 851; Morrow v. Florence Mills, 181 N.C. 423, 107 S.E. 445; Webb v. Virginia-Carolina Chemical Co., 170 N.C. 662, 87 S.E. 633, L.R.A.1916E, 971; Barcliff v. Norfolk Southern R. Co., 168 N.C. 268, 84 S.E. 290; Brown v. Southern R. Co., supra; Ridley v. Seaboard R. R. Co., supra; Adams v. Durham & N. R. Co., 110 N.C. 325, 14 S.E. 857.

In contrast, permanent damages, as the term is used in the law, are given in one award of entire damages on the theory that all damage flows from the original injury, recognized as permanent in character; and such award includes compensation for all damage, however intermittent, or recurring, past, present and prospective, naturally flowing from and proximately caused by the original injury. Porter v. Aberdeen & R. F. R. R., 148 N.C. 563, 62 S.E. 741; Barclitt v. Norfolk Southern R. Co., 175 N.C. 114, 116, 95 S.E. 39; McMahan v. Black Mountain R. Co., 170 N.C. 456, 458, 87 S.E. 237. Following an award of that sort the defendant author of the injury has in effect acquired an easement to continue the offending condition without further liability. McCormick on Damages, p. 514.

When the action is between private persons, as it is here, the plaintiff in such a case cannot be required to thus consolidate all his demands in one action and ask for or receive permanent damages. Where private ownership is involved only by consent of parties may an issue of permanent damages be submitted. Morrow v. Florence Mills, supra; Webb v. Virginia-Carolina Chemical Co., supra.

A different rule as to the propriety or necessity of awarding permanent damages is applied where the defendant is a quasi public utility, or agency having a right of eminent domain, or power of condemnation, when the subject property right falls within the pruview of that power. In that case either the plaintiff or the defendant may demand that permanent damages instead of temporary damages be made the subject of inquiry, (Mitchell v. Town of Ahoskie, 190 N.C. 235, 129 S.E. 626; Eller v. City of...