Troy v. Norment

• Decision Date: 30 June 1856
• Citation: 2 Jones 318,55 N.C. 318
• Court: North Carolina Supreme Court
• Parties: ROBERT E. TROY v. THOMAS A NORMENT.

2 Jones Eq. 318

55 N.C. 318

ROBERT E. TROY

v.THOMAS A NORMENT.

Supreme Court of North Carolina.

June Term, 1856.

Where irreparable injury is alleged by the plaintiff, and is made apparent by the allegations in his bill, the Court will not dissolve a special injunction, simply on the denial in the defendant's answer.

APPEAL from an interlocutory decree, made by his Honor, Judge CALDWELL, at the Spring Term, 1856, of the Court of Equity of Robeson County.

The plaintiff owns a small tract of land, of about eleven acres, adjoining the town of Lumberton, on which he resides, through which there flowed a sluggish expanse of water, creating much swamp-land and marsh; but by cutting ditches in several directions, he had caused the water to flow off freely, and had, in a great measure, reclaimed this marsh, so as to make it fit for cultivation.

The defendant owned a larger tract of land, adjoining the plaintiff's, lying partlv on the marsh or swamp above mentioned, and partly on a depression or swamp, beyond a ridge that entirely separated the natural flows of water into these two depressions or swamps. On this latter side of the ridge there were several ponds of stagnant water, besides the water oozing through the swamp.

The plaintiff alleges in his bill that the defendant commenced the process of draining that portion of his lands lying on the opposite side of the ridge from him, and was, as plaintiff supposed, about to conduct the water from the ponds and swamp, through ditches leading along the natural course of the water; but for some unexplained cause, he suddenly turned towards the plaintiff's land with his main ditch, and was, at the time of filing the bill, in the act of cutting through the ridge above spoken of, and threatened by this means, to throw the whole accumulation of water from these ponds and ditches, mentioned above, into the swamp or depression above described as being on the plaintiff's land, so as to make the whole pass through the ditches prepared by plaintiff; which he alleges, are sufficient to conduct off all the water that might collect in the depression above him, on his side of the ridge, but are by no means sufficient to discharge the additional amount about to be thrown upon his land by this proposed ditch. He alleges that the consequences will be, that his land will be again overflowed, and large quantities of earth, sand and gravel, will be washed down upon it, and entirely frustrate all the pains which he has taken to improve and reclaim it, and will make this part of his tenement worthless, or nearly so. He avers that this grievance would be of constant recurrence, and such that no compensation in damages could adequately remunerate. He further avers that there is no necessity for this act of the defendant, for that he had it in his power, by pursuing the mode prescribed by Act of Assembly, to conduct all the water from these ponds and the swamp, by pursuing with his ditch the natural flow of the water as it now runs, without deviating to cut across the ridge.

The prayer of the bill is for an injunction to restrain the defendant from proceeding with the ditches, as threatened by him, and for general relief.

The defendant's answer denies that he intends to throw all the water on the further side of the...