Spencer v. Wills

• Decision Date: 18 February 1920
• Docket Number: 10.
• Citation: 102 S.E. 275,179 N.C. 175
• Parties: SPENCER v. WILLS ET AL.
• Court: North Carolina Supreme Court

102 S.E. 275

179 N.C. 175

SPENCER v. WILLS ET AL.

No. 10.

Supreme Court of North Carolina

February 18, 1920

Appeal from Superior Court, Hyde County; Lyon, Judge.

Action by S. H. Spencer against A. V. Wills and others. Judgment for plaintiff, and defendant appeals. Affirmed.

Local corporations created by request or consent of the persons residing in the territory incorporated, and principally for their benefit, although they are clothed with powers of a public nature, are liable for damages caused by their negligence.

The action is to recover damages for alleged negligence of defendant in cutting a spillway in the side of canal, whereby a large amount of water was thrown in and upon the lands of plaintiff, causing substantial injury to said land. There was denial of liability by defendant, and on issues submitted the jury rendered the following verdict:

"(1) Were the plaintiffs' lands and crops damaged by reason of the negligent construction of the spillway by the defendants as alleged? Answer: Yes.

(2) What damage has the plaintiff sustained to their crops of 1915? Answer: $241.00.

(3) What permanent damage has the plaintiff sustained to lands? Answer: $1,100.00.

(4) Are the plaintiffs estopped in this action? Answer No--answered by the court."

Judgment on the verdict for plaintiff, and defendant excepted and appealed.

H. G Connor, Jr., of Wilson, for appellant.

Thos S. Long and Spencer & Spencer, all of Swan Quarter, and Daniel & Carter, for appellee.

HOKE J.

There are facts in evidence on the part of plaintiff tending to show that Mattamuskeet drainage district has been established pursuant to the statutes regulating the subject, Laws 1909, c. 509, and chapter 442 and amendments thereto, and in 1915 defendants, as contractors under the authorities of said district, were engaged in cutting East main canal, leading from the lake to East swamp, a distance of a mile or more, plaintiff being a resident of the district, and his land lying just south of the canal. That the work was being done with a floating dredge which operated in the canal, and requiring from 4 to 5 feet of water therein to make it work properly; that after the defendants had cut through plaintiff's land and some distance towards the swamp, a dam was built in the canal between the dredge and the lake, in order to hold the necessary amount of water, and, the work having proceeded to the boundary and on to the East swamp, owing to the excessive rainfall at the time, the canal was flooded with too much water, and it became necessary to relieve the pressure by letting out a portion of the water; that to do this a spillway was cut in the side of the canal, above the dam, 4 to 5 feet wide and 18 inches to 2 feet deep, and extended by a ditch 200 to 300 feet into lands of plaintiff as far as a certain road thereon, known as Quaker road; that this ditch, an extension of the spillway, at some little distance from the canal, cut through a ridge or elevation that had afforded some protection to the arable portion of plaintiff's land, and was stopped at the road without any outlet, and through said spillway and drain large quantities of water from East swamp and adjacent territory was thrown in and upon plaintiff's lands, destroying the crops for the current year, souring the land, both cultivated and woodland, so as to cause substantial and permanent damage to same. It was further in evidence, both from witnesses of plaintiff and the defense, that the water flowing out of the spillway, with 10 or 11 hours' work by proper ditches, could have been carried back into the canal below the dam, and thus prevented from affecting plaintiff's land to any appreciable extent. There was evidence on part of defendant tending to show that the water let out of this spillway could not have injured plaintiff's land, but the damage complained of was caused by the excessive rains upon said land and the rise of waters in the lake, so that plaintiff's land was deprived of its usual and proper drainage. It was further shown that, while this spillway was no part of the plan of drainage as set forth in the surveys, plats, etc., it was made to relieve the canal of the excess of water with the knowledge and approval of commissioners that defendants intended to cut a spillway for the purpose indicated, and these commissioners had afterwards accepted this canal and other dependent portions of the work without objection as to the way the canal had been relieved.

Upon this, the evidence chiefly relevant and sufficiently full to afford a proper apprehension of the questions presented, the jury, accepting plaintiff's version of the matter, has found that the plaintiff's lands were injured by reason of the negligent manner the spillway was constructed, and on such finding we are of opinion that his recovery for the damage suffered has been properly awarded. In Sawyer v Camden Run Drainage District, 102 S.E. 273, a case at the present term, we have held that these districts, organized under our law applicable to the subject, are not to be considered as governmental agencies to the extent that they are protected from civil actions, except where authorized by statute, but are more properly classed with railroads and other quasi public corporations of like kind, and ordinarily liable for their torts and...