Young v. City of Asheville

• Decision Date: 23 March 1955
• Docket Number: No. 103,103
• Citation: 86 S.E.2d 408,241 N.C. 618
• Court: North Carolina Supreme Court
• Parties: O. F. YOUNG v. CITY OF ASHEVILLE, a municipal corporation, The Beaverdam Water and Sewer District, a Municipal Corporation, and John C. Vance, Coke Candler and George D. Young, County Commissioners, as Trustees of The Beaverdam Water and Sewer District.

Page 408

86 S.E.2d 408

241 N.C. 618

O. F. YOUNG v. CITY OF ASHEVILLE, a municipal corporation, The Beaverdam Water and Sewer District, a Municipal Corporation, and John C. Vance, Coke Candler and George D. Young, County Commissioners, as Trustees of The Beaverdam Water and Sewer District.

No. 103

Supreme Court of North Carolina.

March 23, 1955

Williams & Williams, Asheville, for appellee.

Robert W. Wells and George H. Wright, Asheville, for City of Asheville, appellant.

Roy A. Taylor and Don C. Young, Asheville for Beaverdam Water and Sewer District, appellant.

PARKER, Justice.

The defendants' sole assignments of error are the refusal of the Trial Court to sustain their separate motions for judgments of nonsuit made at the close of plaintiff's evidence, and renewed at the close of all the evidence.

The defendants have filed a joint brief. Their argument that the action should have been nonsuited is based upon three grounds. First, that the plaintiff has neither alleged, nor offered evidence tending to show that his lessor was a riparian owner, or had acquired in some way riparian rights in the waters of Beaverdam Creek, and if they, or either of them polluted the waters of the Creek, they breached no duty as to him. Second, if there was a breach of duty, it was not the proximate cause of plaintiff's damage. And third, if they, or either of them, proximately caused plaintiff's damages, then the plaintiff is barred from recovery by his contributory negligence as a matter of law.

A riparian proprietor is an owner of land in actual contact with the water; proximity without contact is unsufficient. An indispensable requisite of the riparian doctrine is actual contact of land with water. Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 at page 1040; Stratbucker v. Junge, 153 Neb. 885, 46 N.W.2d 486; Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781, 60 L.R.A. 889, 108 Am.St.Rep. 647; Hilt v. Weber, 252 Mich. 198, 233 N.W. 159, 71 A.L.R. 1238; 56 Am.Jur., Waters, 731; 67 C.J., Waters, 685; Coulson v. Forbes, Waters and Land Drainage, 5th Ed., pp. 110-111.

In Lyon v. Fishmongers (1876), L.R. 1 App.Cas. 662, p. 683, Lord Selborne said: 'It is, of course, necessary for the existence of a riparian right that the land should be in contact with the flow of the stream * * *'

Plaintiff in his Complaint does not allege the description of the 11 or 12 acre tract of land R. F. Young purchased from S. K. Young and wife. The sole description of the location of the land leased by plaintiff is of the 3 acre tract, and is contained in Paragraph 12 of his Complaint reading as follows:

'That on said 1st day of September, 1953, this plaintiff had under lease from R. F. Young a certain parcel or tract of land consisting of 12 acres, a part of which said acreage was deeded to the said R. F. Young by J. H. Brittain and Forrest Brittain by deed dated the 5th day of December, 1915, and recorded in the Office of the Register of Deeds of Buncombe County in Deed Book 205, page 168, and more particularly described as follows:

'A certain piece, parcel or lot of land, situate, lying and being in Asheville Township and Beaverdam Ward, and on Beaverdam Creek and joining lands of J. H. Brittain and R. F. Young, and bounded and more particularly described as follows:

'Beginning at a stake on west side of branch, said stake being the 3rd corner from spring and the J. H. Brittain Home Tract, also R. F. Young's corner, and runs with said Young's naked line S. 67 deg. 30' W. 495 feet to a Black Oak; thence with the Vance old Line n. 10 deg. 40' 292.6 to stake 25 ft. N. of the middle of the Craggy Mt. RR; thence parallel to 25 ft. from the center of said RR as follows: N. 35 deg. E. 100 ft. N. 50 deg. E. 50 ft. N. 70 deg. E. 50 ft. E. 100 ft. South 86 deg. 30' E. 185 ft. to a stake situated 25 ft. from the middle of said RR; thence South 4 deg. 191 1/2 feet to the Beginning, containing three acres more or less.'

Plaintiff says in his Brief that he has alleged a riparian ownership in Paragraphs 12 and 16 of his Complaint. Paragraph 16 reads as follows:

'That the aforementioned property and the irrigation system located thereon lie below and to the west or northwest of the aforementioned pollution and contamination and that as a result thereof the aforementioned polluted waters of Beaverdam Creek, on or about the 1st day of September, 1953, were picked up by said irrigation system and sprayed upon the crops belonging to this plaintiff and being grown upon the aforementioned 12 acres, including a large quantity of collards and cabbages which this plaintiff was producing for public sale as his livelihood.'

Plaintiff's evidence as to the location in reference to Beaverdam Creek of the land leased by him from R. F. Young comes from his witness R. F. Young, largely on cross-examination, and himself. R. F. Young's testimony tends to show these facts: He owns 20 acres of land in the Newbridge area on Beaverdam Creek. He used the acreage on the Creek to grow vegetables. On cross-examination by the City he said he bought the 3 acre tract of land from the Brittains, the 11 or 12 acres south of the three acres from S. K. Young and wife, and about one acre of woodland on the road from Verne Rhoades. On cross-examination by the District he testified: 'I know about the railroad that runs down to Elk Mountain and the Creek. That railroad runs right between my threeacre tract and the Creek. It is a standard gauge railroad. I didn't say there was no cabbages on this three-acre tract; there was. The pump house is down at the foot of the hill. The cabbages was up on the hill from the pump house. There was a water line running from the pump house up to the top of the hill. This overhead irrigation system is up on top of the hill. The pump is down at the foot of the hill. The water line runs from the pump house to near the top of the hill, then starts the overhead irrigation. The pump house is about 100 yards or something like that up to and from where the irrigation starts. The railroad I speak of was between my land and the pump house and the creek. Mr. Verne Rhoades owns that land in there between my three acres and the creek, that is, last year he owned it, and he still owns it. I guess my property line runs to the creek, as well as I know, with just the railroad between us there. Q. You said a moment ago that Verne Rhoades owns the land between your property line and-- A. (Interrupting) On the other side of the creek. I don't know whether my deed calls for 25 feet of the railroad. Q. Doesn't your deed call for 25 feet from the railroad and running parallel with it? A. There is a deed. I don't know whether it calls for the creek or the center of the railroad. You can read it. My property goes on down the other side over there. The only property that I have got there near that was the three acres that I got from Mr. Brittain, that is the nearest at that point. Whatever the Brittain deed says is what I have there.' On redirectexamination he said: 'The Verne Rhoades property runs up and down the creek; it is on the north side. My property is more on the south side. This is my deed for the Brittain property. Mr. Verne Rhoades has owned the north bank for approximately 15 or 20 years. Q. During the time that that pump has been in have you been in continuous possession of it all that time? Objection--overruled--exception. Exception No. 11. A. Yes, I have been in possession of it.' On recross-examination he said: 'I have a fence between the pump house and the railroad to keep my stock in. Q. That fence goes along the northern line of your tract of land? A. It goes along the line of the railroad there. Q. It goes along your line? A. No, I don't know. It lacks quite a little bit of being on the line so far as I know.'

Plaintiff's testimony is to this effect: In 1953 he leased from his father, R. F. Young, 12 acres of land 'on Beaverdam Creek.' On cross-examination by the City plaintiff said: 'There is a railroad track just north of this 12 acre tract that I had under cultivation. That railroad track is between my twelve acres and the Creek; it comes to the tract that my father bought * * *. From the pump house to the railroad tracks it is 25 or 30 feet, maybe further * * * I couldn't tell you exactly how far it is from the pump house to the Creek. It is somewhere in the neighborhood of 100 feet. Along the north side of the property under cultivation part of it is under fence and part of it is not. Part of the fence is on the south side of the railroad track, and part there is no fence. All the south side of the railroad, part is fenced and part is not.'

The Complaint in the Ballentine Case against R. F. Young and plaintiff is plaintiff's Exhibit 3. No answer to this Complaint is in the Record. In that Complaint the land upon which plaintiff was growing cabbages and collards is described as 'near Beaverdam Creek,' and it further alleges 'that said defendants through various mechanical devices and pipes are pumping water from Beaverdam Creek from a point approximately 800 feet from that area where the cabbages are being raised through a series of pipes to said area where the cabbages are being raised to irrigate same.'

There is no evidence of the defendants of which the plaintiff can avail himself to show whether the land leased by him had actual contact with the water of Beaverdam Creek.

This Court said in Von Herff v. Richardson, 192 N.C. 595, 135 S.E. 533, 534, in respect to description of land in a deed: 'But as between two descriptions, the law ordinarily prefers the specific to the general, or that which is more certain to that which is less certain.'

The specific description in the deed of the 3 acre tract is not ambiguous or insufficient, nor is there a reference in the general description to a fuller and more accurate description of the land, so as to require the general description to control the specific...