Southern Bell Tel. & Tel. Co. v. West

• Decision Date: 20 November 1990
• Docket Number: No. 9030SC61,9030SC61
• Citation: 397 S.E.2d 765,100 N.C.App. 668
• Court: North Carolina Court of Appeals
• Parties: SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Plaintiff, v. Richard WEST, Defendant.

Page 765

397 S.E.2d 765

100 N.C.App. 668

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Plaintiff, v. Richard WEST, Defendant.

No. 9030SC61.

Court of Appeals of North Carolina.

Nov. 20, 1990.

Roberts Stevens & Cogburn, P.A. by Gwynn G. Radeker and Elizabeth M. Warren, Asheville, for plaintiff-appellee.

Patla, Straus, Robinson & Moore, P.A. by Harold K. Bennett, Asheville, for defendant-appellant.

JOHNSON, Judge.

Considered in the light most favorable to the defendant, the evidence tends to show the following. Defendant owns a tract of land on Ratcliff Road in Haywood County on which a one story building and a concrete parking slab sit. Prior to 1974, plaintiff placed two telephone poles on defendant's property between the building and a creek located to the east of defendant's property.

In 1974, the two telephone poles on defendant's property were relocated by plaintiff. The southern pole was relocated and placed approximately 18 inches from the prior existing bank of the creek. The northern pole was placed on the edge of the creek. By 1989, the creek had substantially washed away the prior existing bank leaving the southern pole in the center of the creek. The northern pole still remained on the edge of the creek.

In support of his contention that the erosion of the west bank of the creek was caused by plaintiff's placement of: (1) the southern pole 18 inches from the creek bank, (2) the northern pole on the creek bank and (3) the riprap, defendant presented five witnesses. Two witnesses, including defendant, testified as to the extent of the erosion and the causation. Three witnesses testified as to damages.

At the close of all evidence, the court found that the defendant had failed to prove that he had suffered any damage to his creek bank, building or parking slab as a proximate result of the placement of the poles or riprap. Plaintiff's motion for directed verdict was therefore granted.

Defendant's sole contention on appeal is that the trial court erred in granting plaintiff's motion for directed verdict at the close of all the evidence. We disagree.

Where a party moves for a directed verdict, the trial court must determine whether the evidence, when considered in the light most favorable to the nonmovant, is sufficient to take the case to the jury. G.S. § 1A-1, Rule 50(a); See also Mosley & Mosley Blders., Inc. v. Landin Ltd., 87 N.C.App. 438, 361 S.E.2d 608 (1987), disc. rev. denied, 326 N.C. 801, 393 S.E.2d 898 (1990). Upon appeal, the scope of review is limited to those grounds asserted by the moving party before the trial court. Warren v. Canal Indus., Inc., 61 N.C.App. 211, 300 S.E.2d 557 (1983).

In North Carolina, a landowner may recover for any damages proximately resulting from the intrusion of water on his land due to a third party's construction of an impediment on such land which obstructs natural drainage water. Galloway v. Pace Oil Co., Inc., 62 N.C.App. 213, 302 S.E.2d 472 (1983). Plaintiff must make out his case by proving the facts essential to his cause of action or by proving facts permitting an inference of the material facts as a fair and logical conclusion. Powell v. Cross, 263 N.C. 764, 140 S.E.2d 393 (1965).

The sufficiency of the evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one in his own affairs may base his judgment on mere probability as to a proposition of fact and as a basis for the judgment of the court, he must adduce evidence of other than a majority of chances that the...