Troy v. . Norment , 55 N.C. 318 ( 1856 )

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 (319) plaintiff's, lying partly 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. (320)

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 ridge, upon the plaintiff's side; but he says there is one pond on that side which is extremely injurious to his land, and by cutting this ditch, "which is its natural outlet," he can get rid of it quite conveniently, and thereby keep entirely on his own land; and that otherwise he should have to go upon the land of his neighbor below to make a drain, and should then have to pay damages; besides, in this latter course, he should have to cross the public road with his ditch, which would be a great public inconvenience. He denies that the water which he proposes to pass through the improvement complained of, will cause any accumulation of earth, sand or gravel, as apprehended by the plaintiff, or any accumulation of water, so as to prejudice or incommode the land of the plaintiff; for he says, the fall is such that the whole will pass off freely from plaintiff's land.

On a motion to dissolve the injunction previously granted, the Court, being of opinion with the plaintiff, refused so to order, and the defendant, by leave of the Court, appealed. The doctrine of injunctions, as a branch of Equity jurisdiction, has been so often before this Court, and the difference between a common and a special injunction, so plainly pointed out, that it cannot be necessary to discuss the matter here.

The plaintiff is the owner of a small tract of land, containing eleven acres, which lies below, and contiguous to, a large tract belonging to the defendant. The plaintiff has cut ditches to drain his land, which are sufficient for that purpose. Upon the defendant's land there are several large ponds and bays, and to drain them he is (321) cutting ditches, which will throw the water which runs upon the defendant's land upon the plaintiff's; fill up his ditches and overflow his land. The bill alleges that in cutting his ditches the defendant has left the natural course in which the water flows, and is carrying it through a ridge which divides their respective lands; and that, by pursuing the course of the drainage, the defendant can effect his purpose without injury to the plaintiff. The answer denies that, in cutting his ditches, the defendant has deviated from the natural course of the drainage, and avers that his ditches are needed for the draining of his land; but he admits substantially that the same object may be obtained by him by pursuing a different course.

The principle governing such an application as this is fully stated in the cases of McBrayer v. Hardin, 42 N.C. 1, and Purnell v. Daniel, 43 N.C. 9. In applications for special injunctions (and this is such a one,) the bill is read as an affidavit to contradict the answer; and where they are in conflict, and the injury to the plaintiff will be irreparable, if the relief be not granted, the injunction will not be dissolved on motion, but will be continued to the hearing, to enable the parties to support by proofs their respective allegations. Justice demands this course. Where there is nothing before the Court but oath against oath, how can the Chancellor's conscience be satisfactorily enlightened? It is not denied that every owner of land has a right to improve it in any way he pleases; to cut ditches to drain it where necessary; but in exercising his own just rights, he must be careful to inflict no injury on his neighbor. The defendant, therefore, has a clear right to ditch his own land, but the plaintiff has an equally clear right to be protected in the enjoyment of his property, and when the injury will prove irreparable he has the right to invoke the aid of this Court. The bill alleges that the ditches of the defendant deviate from the natural course of the run of the water; this, the answer denies. The Court cannot know how the fact is without proof.

By the interlocutory order of the Court below, the injunction was continued to the hearing. In this there is no error. This (322) opinion will be certified.

Per curiam.

Decree accordingly.

Cited: Gause v. Perkins, 56 N.C. 182; Dunkhart v. Rinehart, 87 N.C. 228;Marshall v. Comrs., 89 N.C. 107, Zeiger v. Stephenson, 153 N.C. 530;Person v. Person, 154 N.C. 454; Sanders v. Ins. Co., 183 N.C. 67.