Appeal
from Superior Court, Lenoir County; Grady, Judge.
Stacy
J., dissenting.
In
action of trespass against city to recover for injury to land
caused by sinking of wells on nearby land, resulting in
drying up of wells on land, admission of evidence tending to
show condition of plaintiff's farm from time of alleged
trespass until some 50 or 60 years prior thereto held not
material or reversible error.
Whether
city sinking artesian wells made unreasonable use of
percolating waters, thus drying up artesian wells on
adjoining land, held properly submitted to the jury.
The
material facts are:
The
plaintiff, N. J. Rouse, was a resident of Kinston since 1883
and a native of Lenoir county. In 1914 he bought what is
known as the "Caswell Lodge Plantation," about 2
miles west of Kinston on the state central highway, No. 10
containing 581 acres--approximately 300 acres of wood and
timber land that is in low ground subject to overflow, and
about 281 acres of cleared land. The "Ginhouse"
tract was purchased later and contained about 18 acres.
It was
in evidence that when the plaintiff purchased the plantation
it was in a complete state of dilapidation and had the
appearance of a farm being neglected and practically going to
waste--no sign of paint, no buildings on it, except the main
building, a few old barns, with roofs practically off, two or
three little tobacco barns and tenant houses that had gone to
decay. The water that was available was from open wells, and
the water was poor, repellant, unhealthy, not drinkable.
Dr. W
T. Parrott testified:
"The
health conditions prevailing on the
Caswell Lodge place up to the time Mr. Rouse bought it I
would say were as bad as the health conditions in the
Mississippi bottom. It had a bad reputation--the way the
land ran, in a slope and the drainage from the hills above.
It had shallow wells. It was worse than a perfectly flat
place. All the organic waste from the hills would naturally
filter there. I saw the place after Mr. Rouse had dug these
wells. I have practiced medicine on the plaintiff's
plantation both before and after he bought it, and as far
as practice on that farm was concerned, the deep wells
practically put me out of business. * * * Beginning in 1903
or 1904 the general health of the community has increased
wonderfully. I recall the health conditions in this
vicinity in 1902. Typhoid fever is communicable through the
drinking water, but such things as malarial chills come
from another source--surface conditions bring that about.
In the last 23 years the ideas of the general public and
the profession as to community health problems has
undergone a complete change. The surface drainage of this
place as well as others similarly situated has removed the
malarial conditions by removing the mosquito that caused
it."
The
health conditions were bad. Could not get any drinking water
on the place; could smell it when it was gotten out of the
wells. The water was muddy. The people who lived on the place
were sickly and many died. In wet seasons the water looked
like stagnant water from pools. Scum collected on it. For
farming it was practically abandoned; very little farming
done on it. White or negro tenants would not live on it. It
was good land; the trouble was the water.
D. F.
Wooten, ex-sheriff of the county and president of the First
National Bank of Kinston, who had 17 years' experience in
farm operation, and who owned half of the land for 10 or 12
years, testified that the farm was unhealthy and the water
not there for domestic purposes.
This
was the condition of the plantation when the plaintiff bought
it. The plaintiff was mayor of Kinston. The first artesian
well dug in Kinston was at the corner of the old pumping
station. It was discovered August 8, 1904, and that well
discharged between 30 and 40 gallons natural flow. The
plaintiff testified:
"My
first experience with artesian wells was when I was mayor.
That well was dug at the direction of Dr. Tull and myself.
He was chairman of the board of county commissioners, and
it was an experiment, and when that water came up that
water ascended the pipes 7 or 8 feet."
With
the experience that the plaintiff had in that locality,
artesian wells were the only ones that would furnish pure and
wholesome water fit for domestic purposes. He said:
"I
began to explore for deep wells promptly after I got it. I
saw it was impossible to get tenants. The first objection
was that there was no water and was unhealthy, and I
determined to try and get deep water. * * * It is good
land, all of it. The lightest soil that you can find on the
plantation that is good for agricultural purposes going
towards La Grange. In between the highway and the railroad
down to this end it is just a little lighter than the
balance, and going west it is a good clay subsoil.
Cultivate excellent crops on it regularly--tobacco, corn,
rye, oats, any crop that grows in this section, and it is
all adequate to trucking. I knew when I bought the place
that it was necessary to drive an artesian well, which I
did. When I bought that place I did not own the
'Gin' premises mentioned here. I bought the
'Gin' premises and there was a well there sunk by a
former owner and was running feebly--furnished sufficient
water for the tenants until these wells were put down. The
first thing I did was to condemn the open well at the
northern end of the porch of the main building and had this
well sunk there at the back porch and brought from the back
porch and entered into this basin, and it produced as fine
water as any we have. The well was not as good a well as
the second one. It was a good well and good water, and
abundant. The water went to a depth of 200 feet, and we
piped the water to a reservoir on the back porch, used it
for several years on the back porch. I had two lines piped
to the well. One line I took off to the dairy which is
about 20 feet north of the back porch. I took a pipe and
conducted it to the dairy and had a sink made for butter
and milk, and this water ran into the sink in which the
butter and milk was kept and the water was flowing
continuously, didn't have to do any pumping. Then after
going into the dairy, we had it so arranged that it went
into the horse lot about 30 feet east of the dairy. The
water was running through the trough all the time and went
through the public road to the highway and watered my
cattle. My cow stables are south of the road. The water
from the horse lot emptied into another trough, and
escaping from that it emptied into these marl holes, and
was carried across the public road into the two houses that
are there now. These were tenant houses. From that well I
ran pipes into the tenant houses and furnished them from
the same well without any artificial pressure, there were
two pipes; one went to the residences, and one went into
the dairy. Then a third pipe went in a northwest direction
through my garden. The low ground could have been
irrigated. I put down plant first. It began to sog my
garden, irrigated it too much. This is the only well at the
house. On the other side of this plantation some houses are
scattered here and there, and I took those two residences,
two houses painted red that lie west of the highway, built
those houses, and I sunk a well midway between the houses
to furnish them both with water. That well was carried down
a depth of 200 feet, lined it all the way down, and out of
that well came the largest flow of artesian water I have
ever seen. I have had experience as to artesian wells. I
was mayor when it was discovered that we could get artesian
wells here. It was freer than the city wells. This well
furnished a good deal more water than either of the city
wells. We put a tap on it and reduced it, it was coming so
strong you could not catch it with a dipper and a system of
piping was installed and water taken into the residence
further west,
occupied by J. D. Stevens. That water flowed with great
volume through his kitchen into the sink and went through
both houses. It was 150 yards between the two houses and
the well was between the two--75 yards each one was to the
well. Both were dependent upon that well. Including the
labor, the piping, and help incident to exploration and
digging of those wells, my best estimate would be that they
cost about $1,000 for the two. I might be a few hundred
dollars either way. Things were cheaper then. That is not
including the piping around the residence, I am speaking
about the wells alone. In addition to that, the cost of
pipes to the different residences. I would say that added
$150 or $200 to it, I expect $200. I did not keep an
account of it. The uses of this stream of water made the
plantation desirable to live upon, in the first place,
supplied as good water as is in the world, with the result
that it is a healthy plantation. It enabled me to get an
entirely satisfactory class of tenants. I can get as many
tenants as I want, because it is healthy and good water. It
has made it particularly desirable for a dairy. I built a
silo and got me a herd of cattle. The low land is elegantly
adapted for pasture land, and with the water it makes it
ideal for a dairy. Another purpose, it is entirely
adaptable to irrigation. The large well on the highway,
which I estimate to be running 75 to 100 gallons a minute,
was brought up 4 or 5 feet above the ground, which made it
then in its location about 12 feet above the level of the
cleared land. Immediately I saw an ideal situation for
irrigation. It could have easily been carried over the
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