Staton v. Norfolk & C.R. Co.

• Decision Date: 17 November 1892
• Citation: 16 S.E. 181
• Parties: STATION v. NORFOLK & C. R. CO.
• Court: North Carolina Supreme Court

16 S.E. 181

STATION v. NORFOLK & C. R. CO.

Supreme Court of North Carolina

November 17, 1892

Appeal from superior court, Halifax county; G. H. BROWN, Judge.

Action by T. M. Station against the Norfolk & Carolina Railroad Company to recover for damages to plaintiff's land caused by the construction of a ditch along defendant's right of way, through which surface water was conducted, and finally emptied into a natural water course, whereby plaintiff's land along the water course was overflowed. From a judgment for plaintiff, defendant appeals. Affirmed.

Thos N. Hill and W. H. Day, for appellant, to sustain the right of the railroad company to divert the surface water, cited Railroad Co. v. Davis, 2 Dev. & B. 451; Prescott v. Williams, 39 Amer. Dec. 688; Ang. Water Courses, p 91; Bassett v. Manufacturing Co., 82 Amer. Dec. 179; Livingston v. McDonald, 89 Amer. Dec. 568; Gregory v. Bush, 64 Mich. 37, 31 N.W. 90; Ang. Water Courses, § 108a; Elliott v. Rhett, 57 Amer. Dec 756; Kauffman v. Griesemer, 67 Amer. Dec. 440; Lattimore v. Davis, 33 Amer. Dec. 581; Bowlsby v. Speer, 86 Amer. Dec. 216; Hooper v Wilkinson, 77 Amer. Dec. 194; Martin v. Jett, 32 Amer. Dec. 120; Ang. Water Courses, §§ 108a-108s; Gannon v. Hargadon, 87 Amer. Dec. 625.

Where a railroad company constructs a ditch along its right of way, whereby it diverts surface water from the direction in which it naturally flows, and overflows land on the natural water course into which the water so diverted is finally emptied, the company is liable for the damage, though the ditch was necessary to the operation of the road, and it was carefully constructed.

R. O. Burton, for appellee.

SHEPHERD J.

In the case of Jenkins v. Railroad Co., 110 N.C. 438, 15 S.E. Rep. 193, we had occasion to say, in respect to the drainage and diversion of surface water, that "a railroad company enjoys the same privileges as any other landowner, but no greater, to be exercised under the same restrictions and qualifications," and that it "has a right to cut ditches (on its right of way) and conduct the surface water into a natural water course passing through its land; and if this right is exercised in good faith, and in a reasonable manner, for the better adaptation of the land to lawful and proper uses, no damages can be recovered if the lands of the lower owner are injured." In the opinion in that case we did not attempt to lay down any precise rule as to what would be a reasonable exercise of the privilege, under all possible circumstances; and, in confining ourselves to the enunciation of a few general principles, we but followed the example of the highest courts, both in England and America. Indeed, it would be impossible to anticipate the many and varied phases in which this difficult subject may be presented; and it is believed that any effort to do so would be attended with a practical denial of justice in many instances. We stated, however, that "if the water course is inadequate, and injury may result to a lower owner, the right to cut such ditches must be confined strictly to mere surface water," and that it would be an unreasonable exercise of the right if the ditches were so constructed "as to divert the surface water from a direction in which, by the general inclination of the land, it naturally flows." In the present case there was abundant testimony tending to show the existence of the qualifying conditions just stated, and the charge of his honor in this respect is fully sustained by the principles declared in the decision to which we have referred. If his honor deviated at all from these principles, (and we are rather inclined to the opinion that he did in a slight degree,) it was in favor of the defendant, and it can therefore have no just ground of complaint.

As we understand it, the exceptions most seriously relied upon are addressed to the refusal of the court to give the instructions prayed for; and these substantially involve the proposition that, inasmuch as the legislature has authorized the defendant to construct its road, it is not liable to an adjacent proprietor for any damage incident to such construction, provided the work is necessary and is skillfully and carefully performed. In other words, it is insisted (notwithstanding our declaration to the contrary in Jenkins' Case) that a railroad company, under such circumstances, is entitled to greater privileges than an individual, and that where the latter would be liable for a violation of the principles embodied in the maxim, sic utere tuo ut alienum non lædas, the former would be exempt from all responsibility whatever; and this, upon the theory that the damage is supposed to be "consequential," for which no action can be maintained. In support of this view, it is asserted that a railroad is for the benefit of the public, and that, in the very authority to construct it, there is an implied subordination by the legislature of the rights of individuals. This may all be true when compensation is provided, as where land is actually condemned and taken as a right of way, but it would be a strange measure of justice to require a railroad company to pay only for a narrow strip of land about 50 or 100 feet in width, and at the same time practically confer upon it the privilege of destroying thousands of acres of the land of adjacent proprietors, without either the duty of making compensation or the liability to a common-law action for damages. It would be of small comfort to the ruined proprietor to be told that he must bear his loss for the benefit of the public, and it would not be unnatural if he answered that if the public good required the destruction of his property an enlightened sense of public justice should demand that he be compensated for his loss. In this he would be sustained by the words of Sir William Blackstone, that "the public good is in nothing more essentially interested than in the protection of every individual's private rights." 1 Bl. Comm. 138.

It is true that some of the cases from other states, cited by the defendant's counsel, go to the extraordinary length of sustaining his proposition; but these are not in accord with the more recent and better authorities, and they are rapidly being submerged by the steady and increasing current of judicial decision. Mr. Lewis, in his excellent work on Eminent Domain, (section 566,) referring to cases of a similar character, remarks that underlying such decisions "is an erroneous assumption as to the rights acquired by the purchase or condemnation of property for public use. This assumption is that there is acquired, not only all the ordinary proprietary rights in the property taken, but also certain proprietary rights which pertain to the property not taken. There is no warrant for this assumption, either in reason or authority, outside of the particular cases referred to. There is no reason why a railroad, in purchasing or condemning property for its use, should be held to acquire anything more than would be acquired by a private individual purchasing the same property for the same use." After speaking of the liability of such a private individual for any actionable injury to the adjacent land, "either by depriving the soil of its support, by interfering with the flow of running streams, or otherwise," the author proceeds:

"So with a railroad when it acquires a right of way through a tract of land. It becomes an adjoining proprietor with the owner of the tract, with precisely the same rights and duties with respect to such owner as though the strip of land had been acquired by an individual for ordinary use, except the unqualified right of operating the road in a reasonable and proper manner, and so with every description of taking for public use. In adapting the property taken to the use proposed, the public or its agent is subject to the law of adjoining proprietors, and to the maxim, sic utere, etc. If in such adaptation the adjacent owner's rights of property are violated, he is entitled to compensation, not on the ground of a want of skill or diligence in constructing the works, but because his constitutional rights of property have been violated."

At an early period in our history, some of the constitutions of the states contained no provision that private property should not be taken for public use without just compensation, but so repugnant to natural justice, as well as to the constitutional principles of the mother country, was the assertion of the right, that the courts of these states unhesitatingly pronounced against such an assumption of legislative authority. Some of them declared that it was against the fundamental principles of natural justice and equity; others rested their decision upon the ground that it was in conflict with a provision of the federal constitution upon the subject, (which, however, is only a limitation upon the federal government;) while others reached the same conclusion upon the more satisfactory principle that it was inhibited by certain provisions ofMagna Charta, which had been incorporated into their organic laws. All of the states however, except North Carolina, now contain express provisions that "private property shall not be taken for public use without just compensation," and, owing to the restricted interpretation of the word "taken," (improperly, we think, applying it exclusively to property actually condemned,) several of them have added the words "or damaged," or language of similar effect. We cannot ascribe to our lawmakers, in authorizing the construction of railroads or other corporate works, the purpose of granting them privileges so violative of the rights of the private property owner, and we feel assured that, in conferring such privileges, it was intended that they should be...