Teseneer v. Henrietta Mills Co.

• Decision Date: 18 March 1936
• Docket Number: 167.
• Parties: TESENEER et ux. v. HENRIETTA MILLS CO.
• Court: North Carolina Supreme Court

184 S.E. 535

209 N.C. 615

TESENEER et ux. v. HENRIETTA MILLS CO.

No. 167.

Supreme Court of North Carolina

March 18, 1936

Appeal from Superior Court, Rutherford County; W. F. Harding, Judge.

Action by J. W. Teseneer and wife against the Henrietta Mills Company. Judgment for plaintiff, and defendant appeals.

Judgment modified and, as so modified, affirmed.

This was a civil action instituted by plaintiffs against the defendant to recover damages to land alleged to be the result of the negligent construction and operation of the power dam below the land owned by plaintiffs.

The plaintiffs allege in part:

"That the construction of the said dam has caused the bed of the said river to gradually fill up over a period of several years with silt and sand and debris several feet deep, and has caused the bed of the said stream for several miles above the said dam to be several feet higher than it was originally; that included in the plaintiff's tract of land hereinabove described are about 20 acres of river bottom land lying on the west side of said river and on both sides of said creek or branch; and that up until the last few years the said bottom land was in a high state of cultivation and was extremely fertile bottom land for the production of corn and other crops, had level surface and rich soil and was free from deposit of silt and sand. * * *

That during the past few years the defendant, on account of the unusual and abnormal dry summers, has failed and refused to operate the said dam properly in that the defendant has not opened the gates of the said dam and has not drawn therefrom the water, silt and sand as frequently as formerly and as necessary, but has allowed the gates to be closed for months at a time in order to preserve water-power.

That solely by reason of the construction of said dam and the addition thereto in height as aforesaid mentioned and the negligent and careless operation of said dam in not having the pond properly and frequently 'drawned,' which said operation has continued until present time, the bed of the said river and branch has filled with dead sand and silt and other debris, and has caused the bed to rise several feet higher than originally, and as a result thereof the said river and branch have practically no banks whatever, and that whenever any little rain or freshet occurs the river and branch spread its water, silt and sand all over the bottom land of the plaintiffs, and further that the said lands during the past two and three years have been visited and covered and filled with water and sand to such an extent that the said lands are now entirely useless and worthless for cultivation and that by reason of the accumulation of sand several feet thereon said lands are also unfit for pasture or any purpose. * * *

That the aforesaid acts of negligence and wrongful conduct on part of defendant have gradually increased the damages to said bottom land so that for the past two years or more the plaintiffs' bottom lands have not been fit to cultivate or even use for pasture; that prior to commencement of injury to plaintiffs' lands 40 to 50 bushels of corn could be easily and profitably produced; that plaintiffs have not only lost use and yields from bottom lands during the past few years, but that said lands are permanently unfit for either cultivation or pasture, and that since the bed of said river and stream is gradually rising and thus increasing the deposit of water, sand, and silt, the damages to plaintiffs' farm and bottom land are becoming more and worse and greater each year, and have been getting worse each year for past few years."

The defendant denied the material allegations of the complaint and, as a further defense, says: "That the dam referred to in plaintiffs' complaint was constructed more than thirty-five (35) years ago, and has been operated since that time by the defendant Corporation. That the operation of said dam has been proper, and the same has been operated in such a manner as not to cause any damage to the plaintiffs' property or any other property. That if any damage has been occasioned by the construction and operation of said dam that the said damage accrued many years ago; and this defendant pleads the Twenty-year Statute, the Ten-year Statute, the Seven-year Statute, and the Three-year Statute of Limitations as a complete bar of plaintiffs' right to recover in this action."

The issues submitted to the jury and their answers thereto, were as follows:

"1. Are the plaintiffs the owners of the land described in the complaint as alleged? Ans: Yes. (By consent).

2. Has the defendant, in the operation and control of its dam wrongfully flooded the lands of the plaintiffs as alleged in the complaint? Ans.: Yes.

3. Is the plaintiffs' cause of action barred by the statute of limitation as alleged in the answer? Ans.: No.

4. What damage, if any, is plaintiff entitled to recover? Ans.: One Thousand Dollars ($1,000.00)."

The court below rendered judgment on the verdict. The defendant excepted, and assigned error to the judgment as signed, and also made numerous other exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

Although opinion evidence

Judgment for property owners for permanent damage to land resulting from water being backed up on land because of operation of dam required modification granting owner of dam easement to back water on damaged land.

Stover P. Dunagan and Robt. G. McRorie, both of Rutherfordton, and Clyde R. Hoey, of Shelby, for appellant.

Wade B. Matheny, of Forest City, for appellee.

CLARKSON Justice.

The first question: Should plaintiffs be nonsuited? We think not.

At the close of plaintiffs' evidence and at the close of all the evidence, the defendant in the court below made motions for judgment as of nonsuit. C.S. § 567. The court below overruled these motions, and in this we can see no error.

Upon a motion as of nonsuit, all the evidence which makes for plaintiff's claim or tends to support his cause of action is to be considered in its most favorable light for plaintiff, and he is entitled to every reasonable intendment thereon, and every reasonable inference therefrom.

The competent evidence on the part of plaintiffs sustained the allegations of the complaint, that about 20 acres of plaintiffs' land was damaged by the negligent construction and operation of defendant's power dam, about one mile and a quarter below plaintiffs' land. The defendant having pleaded certain statutes of limitation, the court below limited the question of wrong to three years. The suit having been commenced on December 15, 1934, the wrong was limited to three years from December 15, 1931. We think from the facts and circumstances of this case that the court below was correct.

The defendant's evidence was contrary to that of plaintiffs, but under the rule in this jurisdiction we can only consider plaintiffs' evidence.

About 1895 the defendant built a dam across Second French Broad river, at Caroleen. In 1918, the plaintiffs purchased 57.48 acres of land about one and one-fourth miles above the defendant's dam, paying therefor $50 an acre. Plaintiff J. W. Teseneer, testified, in part: "When I moved there in 1918 the banks on the river were about 6 feet deep, and now the banks around the bottom land are something like two feet deep or a little more. The bottom land is in two tracts, and it is about a quarter of a mile from the lower tract to the upper tract. When the dam is full the pond water would stand on the bottom land. * * * The river did not throw out any sand to do any damage up to about six years ago. * * * I did not plant anything on the bottom land this year, as I made nothing last year. At the present time the land is wet, the part that does not have dead sand on it. About four or five feet of dead sand on it now. It is all level land. Some of it in places is deeper than others. It is so deep that it would not make anything. I am satisfied the average depth on the lower bottom is two feet and six feet on upper bottom. * * *"

For seven consecutive years after plaintiffs purchased the tract of land in controversy, he raised 40 to 50 bushels of corn to the acre. He testified further: "The land is not fit for cultivation now. I never planted anything this year. I let the cows run over it for pasture. Planted about two acres in wire grass about four years ago, but it won't grow. Neither corn nor any other kind of crop will grow in the sand now."

There was other evidence on the part of plaintiffs corroborating his testimony. The plaintiffs' expert witness, H. H Stribling, an engineer and surveyor, testified, in part: "Assuming 100 to be the height of the flash board on the dam (in order to keep all other measures applicable to 100) the back water with no spilling extends to Teseneer's lower tract, which is absolute dead water-no spilling at one and quarter miles. There is a fall of about two feet from the upper to the lower tract. * * * I examined the surface of the bottom land in question. It is irregular, cut up with sluices; varies in height from one to six feet. At the peak it is ten feet above the spillway, that is all sand. * * * The bank is practically as high as ever, but it is sand and not soil. I would say the sand is 4 ft. deep, most of the way, caused by water and flood-stilling the flood water-stilling of the flood water due to the level of the flash board on the dam. The level from that point and each succeeding point is still in comparison with the middle of the stream, and it is held there long enough to deposit sand. In a country which is not all cleared it would take quite a long time after the completion of the dam for...