State v. . Suttle , 115 N.C. 784 ( 1894 )

The right was reserved in the original deed in clear and unmistakable terms to raise as well as to rebuild the dam. Those who took title to the land subject to the servitude had no just ground to complain of the exercise of this right, and were in no better condition before the court when indicted under section 1087 of The Code than any other person who ventures to take the law in his own hands and seeks redress for an imaginary injury by destroying another's milldam. When the prosecutor reserved the right of raising as well as rebuilding the dam, we cannot agree that both words were used to mean the same thing, because, giving to the language its ordinary import, the parties obviously had in view the possibility that the grantor, his heirs or assigns, might deem it best for their own interests to do just what it appears was done by them, in case the old dam should be swept away.

It seems to us that the defendant has no ground to object to the construction placed upon this clause by the court, nor of the instruction as to the application of the facts to it. It was suggested that the defendant, who holds through the mesne conveyances from the grantees under the deed from Hildebrand, in neither of which is any mention made of the reservation by Hildebrand, may hold discharged of the servitude. But Hildebrand, having reserved the easement, the right to it could not be divested out of him except by a conveyance or by adverse possession for the necessary period. The mere cultivation of the soil being no interference with the enjoyment or right to use the easement, does not expose the occupant to an action of trespass by the dominant owner, and therefore does not constitute a possession adverse to him. Osborne v.Johnston, 65 N.C. 22; Boomer v. Gibbs, 114 N.C. 76; Hamilton v. Icard, ib., 532. The right to an easement may be acquired by (789) prescription or lost by an adverse user, but in either case the user must be of such a nature as to expose the claimant under it to an action at any time for twenty years. Emry v. R. R., 102 N.C. 209.

The owner of the agricultural interests may become a trespasser as to the reserved mineral interest, but only by engaging in mining for the mineral or minerals reserved (Ashmore v. Taylor, 12 A. 74), and so he can, by direct interference, indicating an unequivocal claim to the easement as distinguished from the right to cultivate, subject himself to liability to the dominant owner of the easement to build or raise a dam.

The defendant had no reasonable ground to object to the instruction that his right was not infringed unless the water was actually ponded back further than Hildebrand was authorized to throw it back. The mere erection of the frame of a dam, which by further work in putting on grooving planks or boards would so pond the water back and create a nuisance, does not constitute a nuisance before any injury ensues.

We deem it unnecessary to mention in detail the several assignments of error. What we have said meets the reason of all the exceptions.

No error.

Cited: Shaffer v. Gaynor, 117 N.C. 21; Everett v. Newton, 118 N.C. 923.