Williamson v. Lock's Creek Canal Co.

• Decision Date: 31 January 1878
• Parties: K. M. C. WILLIAMSON v. LOCK'S CREEK CANAL COMPANY.
• Court: North Carolina Supreme Court

78 N.C. 156

K. M. C. WILLIAMSON

v.LOCK'S CREEK CANAL COMPANY.

Supreme Court of North Carolina.

January Term, 1878.

CIVIL ACTION, for Damages, commenced in Cumberland, and removed to and tried at Fall Term, 1877, of MOORE Superior Court, before Seymour, J.

The facts are sufficiently stated by Mr. Justice RODMAN in delivering the opinion of this Court.

The counsel for defendant requested the Court to charge:

1. That the plaintiff was not entitled to recover because he is presumed to have used the water with notice that at sometime the swamp would be drained; certainly he is not entitled to recover for a diversion of water which became necessary by reason of the addition of machinery erected after defendant's charter. Declined.

2. That the plaintiff is not entitled to recover because he has failed to show 20 years uninterrupted occupation or user of the water, in himself or those under whom he claims. Declined.

3. That if the water diverted was surface water, the plaintiff is not entitled to recover. Given.

4. That plaintiff cannot recover against the individual defendants. Declined.

It is not deemed necessary to set out the instructions of His Honor, as they are not reviewed here, except as to one point which sufficiently appears in the opinion.

Under the instructions given, the jury returned a verdict for the plaintiff. Judgment. Appeal by defendant.

Messrs. J. W. Hinsdale and N. W. Ray, for plaintiff .

Messrs. McRae & Broadfoot, for defendant .

RODMAN, J.

This action was brought by the plaintiff, the owner of a mill on the outlet from a certain swamp, called Flat Swamp, to recover damages against the canal company, McKeithan, President of the Company, J. M. Williams one of the Directors, and Devane the contractor who executed the works complained of, for diverting a water course formed by the union in or on an edge of the swamp of Lock's Creek and Evan's Creek, the united waters of which run, as it is claimed, through the swamp, between defined banks, and with waters from other sources running through the swamp, from the stream on which the plaintiff's mill is situated. The diverson it is alleged was effected by cutting a canal from, at, or near the point where Lock's Creek and Evan's Creek enter the swamp, to a point on the Cape Fear River above the plaintiff's mill, and thus diverting a considerable part of the water which was accustomed to flow and naturally did flow by the plaintiff's mill from ??ts natural and accustomed course, to the damage of the plaintiff.

The plaintiff in his complaint alleges that his mill is an ancient one, &c. But this taken in connection with the rest of the complaint we take to be surplusage. The plaintiff was probably induced to insert this in his complaint, by amendment, by reason of some observation in the opinion of the Court when this case was before us heretofore. 76 N. C. 478. But those remarks were evidently based on the idea, which was not inconsistent with the facts as they then appeared, that the plaintiff by his mill obstructed the outflow of water from the swamp, and ponded water on the lands of the defendants, a right which could be acquired only by grant or prescription. But as the case now appears although the plaintiff says that his is an ancient mill, he does not claim any right to pond water on the land of the defendants, or to obstruct its flow from their land, or any other right by prescription. Neither he nor the defendants allege that he does so pond it, or obstruct its natural flow. The plaintiff claims only on the ground that as a riparian proprietor he has a right to use the water of a natural water course as it flows through his lands and had appropriated it to a lawful use before the act complained of.

The defence to this claim in substance is;--

1. That there is no water course in the legal sense of the term, that is, with well defined banks, flowing through the lands of the detendants or of those whom they represent, to the lands or mill of the plaintiff.

2. That in the interest of agriculture, they, as owners or as representing owners of land in Flat Swamp, have a right at common law or by virtue of certain Acts of Assembly, to drain off from their lands the surface water; and that this term “surface water” includes not only the water which falls on their land in rain, but also all water which overflows the banks of the water course (if any) flowing through their land to the mill of the plaintiff, and all which soaks or percolates through the banks of said water course called in the South, and perhaps elsewhere, seepage water, and that this right extends not merely to freeing the very top or surface of their land from such water, but to freeing it to a depth sufficient for the purposes of agriculture, or greater if need be, for wells, &c., and this, although it may incidentally draw from the water course a material quantity of water which would otherwise flow down it to the plaintiff's mill, and any damage so resulting being rightful is in law language “ damnum absque injuria.”

Such as we conceive is the contention of fact and right between these parties.

1. Speaking generally, we take it to be clear that every proprietor of land through which a water course flows, has a right to a reasonable use of the water, whether for power to turn a mill, or for watering his stock, or irrigating his lands, &c; provided, he does not by his use of it, materially damage any other proprietor above or below. Of course the rights of such a proprietor would be liable to be limited by the just rights of any proprietor above or below. Taking this to be so, the complaint discloses a sufficient cause of action without reference to the question of the mill being an ancient one, liable however to be defeated by any sufficient defence. The jury under the instructions of the Judge found the material allegations of the complaint, and we are now called on to examine into the propriety of these instructions, as far as we may, according to established rules.

2. It is admitted that the propriety of the Judge's refusal to give the instructions specifically asked for by the defendant, is open to review here.

We are of opinion that those instructions were properly refused. Without discussing them seriatim it will be sufficient to say, that they are all founded on the idea, that the plaintiff was bound to prove a right to use the water as he did, either by grant or prescription, or on the idea, that the giving of notice by defendants, either by the charter of the canal company or otherwise, in some way impaired the right of the plaintiff over the water course.

It has been seen that the right claimed by the plaintiff in his complaint, is not claimed by virtue of any grant, but under his rights as a proprietor of both banks of the stream on which his mill is situated; and I cannot conceive of any principle on which a notice from defendants that they intended to drain the swamp, could...