Fleming v. . R. R. , 115 N.C. 676 ( 1894 )

The rule adopted by this Court restricts the trial judge in settling the issues to those raised by the pleadings, but does not require him to frame an issue involving the truth of every fact alleged on the one side and denied on the other. When those submitted are raised by the pleadings, and with the findings upon them form a sufficient basis for the court to proceed to judgment, no exception to them is available to either of the parties, unless it can be made to appear that there was some view of the law arising out of the testimony which the party appealing was precluded from presenting for the consideration of the jury for want of a pertinent issue.

The question whether the culverts constructed were sufficient to carry off the water was involved in the broader and more general inquiry suggested by the third issue submitted. If the defendant negligently constructed the culvert, so as to cause the water to be ponded on plaintiffs' land, then it was insufficient for the purpose and the defendant was liable. It would seem impossible to conceive of any legal (691) proposition growing out of the testimony, in reference to the culvert, that could not have been considered in passing upon the third issue, if it had been presented by the defendant in the shape of a prayer for instruction.

To build a culvert that is insufficient to carry off the water, whereby water is ponded on a complainant's land, is a wrongful and negligent construction. The gist of the controversy, or that part of it, was involved in the inquiry whether the plaintiff had been damaged by the negligent ponding of water by the defendant in constructing its road. The building of an insufficient culvert is one species of carelessness that might have been the immediate cause of such an injury. Indeed, all three of the specific allegations contained in the three separate causes of action, and constituting the grounds of complaint, to wit, first, the insufficiency of the culvert; second, the filling up of the ditches; and third, the diversion of water from its natural course so as to cause plaintiffs' land to be overflowed, might have been comprehended under one general issue as to negligent construction, and the judge might, in his discretion, have dispensed with the fourth and fifth issues which involved the specific allegations of negligence in the other cause of action, to wit, the filling of the ditches and the diversion of the creek.

The finding upon one general issue, involving every species of carelessness mentioned in all of the three causes of action, and the judgment thereon, would of necessity have been conclusive upon the parties as to all matters in controversy, and as to the right to recover upon any of the causes of action. Whatever might have been offered in evidence and passed upon, the law will generally presume was presented to the jury.

It being incumbent on the defendant to show that it was deprived of the opportunity to present some material view of the law arising out of the evidence, and its counsel having failed to point out any (692) pertinent principle of law that could not have been applied, through the medium of instruction, to the issues submitted, there is no abuse of the discretionary power of the judge shown in framing them as he did.

The conclusion that the fifth issue is not raised by the pleadings is not tenable. The allegation in the third cause of action was that, "in the construction of said road the defendant dug on each side of the bed of the road, a ditch, whereby a large and unusual volume of water is diverted from its natural course and turned upon the land and into the ditches of plaintiffs," etc. There was evidence that the natural course of the water alleged to have been diverted was through Barnfield Branch. It would be sticking in the bark to say the issue was not raised because, on hearing the proof that water was diverted from its course, the natural course was shown to be a certain branch, and the court specified such alleged natural outlet by name in the issue, in order more clearly to direct attention to the real subject of inquiry raised by the pleadings. The question passed upon was not whether the water of Barnfield Branch was wrongfully andnegligently diverted from its natural course, but simply whether it was diverted. There being "evidence tending to show that the branch was a natural waterway, and evidence to the contrary," as defendant's counsel states in his brief, he had the opportunity to request the court to tell the jury that, if they found that the branch was not a natural channel, it was not negligent or wrongful, on the part of the company, to divert it from the ravine down which it previously ran. The question might have been raised by such a prayer for instruction, but not by objecting to the issue before or after failing to do so.

We shall have occasion, upon the consideration of another branch of this controversy, to discuss the bearing of this question whether that branch was a natural outlet.

"Such damages as is due to the erection of a waterway over a running stream, at the point of its intersection with the line of a railway, (693) is considered, when the work is skillfully done, as included in the cost and valuation of the easement, or to have passed as incident to a grant of it, and the fact that it was so constructed as to pass the water, even in time of ordinary freshet, being admitted, neither the owner of the servient tenement nor the proprietor of a tract above can maintain an action for damages caused by placing the structure across the stream."Adams v. R. R., 110 N.C. 725.

It was not competent, then, to prove upon what principle the commissioners estimated damages in the condemnation proceedings. The law determines what rights and privileges pass to the dominant owner, upon proof that the right of way was lawfully condemned for public use. One uniform rule applies in ascertaining what has passed as incidental to the acquisition of the right of way. The dominion and privileges of a corporation have the same limit, and are subject to the same restrictions on every part of its line, except when the right of way is granted by the owner with reservations, presumably allowed by reason of the exaction of a smaller consideration than would otherwise have been charged, as where the width of the way granted is to be narrower, or the company agrees to construct crossings or cattle-guards at a designated point, or in a particular manner, not otherwise required. The testimony was not competent in any point of view, but, if the undisputed evidence showed that the trestle over the Great Swamp was a sufficient waterway to discharge the water that flowed through it, except when there was an extraordinary rainfall, then it was immaterial, even if competent. Emry v. R. R.,102 N.C. 209.

When two of the counsel for the defendant admitted in the progress of the trial, on behalf of their client, that the plaintiffs owned and were possessed of the land, it was error in the court to instruct the jury to respond in the affirmative to the first issue, involving the question of title and possession. In the same way, counsel were bound by their admission that "Great Swamp was a natural watercourse (694) and drain for said land," and were not at liberty, after the trial, to except to the instruction to the jury to write the response, in accordance with their express agreement.

The same principle applies to the consent of counsel given "in open court, at the close of the charge, that the jury need not respond to each amount of damage separately, if more than one cause of damage was found to exist, but that they might find the aggregate amount for all causes, and respond only to the ninth issue on that question." We need do nothing more than to quote the language used by the judge in stating this exception:

The court told the jury, in substance, that the response to the fourth issue should be "Yes," if the defendant filled up the plaintiffs' drain ditches when it was not necessary to the proper construction of the road to do so, but if the defendant had not damaged plaintiffs' land or filled up the ditches, or in obstructing the ditches had done no injury that was not necessarily incident to a skillful construction of the road, and had provided other drains in connection with their side ditches, affording equally good drainage, the answer should be "No." We fail to comprehend how the defendant was prejudiced, as is contended in the fourth assignment of error, by the refusal of the court to tell the jury that it was defendant's duty to provide ditches, affording "sufficient drainage," and instructing them, in lieu, that he was required only to provide ditches affording equally as good drainage. It may have been possible to provide equally as good drains as had been dug by the plaintiff, at much less cost than to construct such as would have afforded "sufficient drainage," or such as would have thoroughly prepared the land for farming. The defendant cannot justly complain because the court held, that while it was liable for injury to the land, it was not bound to improve its condition after paying for the privilege of passing through it.

(695) The fifth issue arising out of the third cause of action involved the question of the unlawful diversion of water (which the evidence showed referred to Barnfield Branch) from its natural course. The instructions asked, and those substituted in lieu, gave rise to several assignments of error, which may be summarized as follows: That the court erred in instructing the jury —

"1. That it was not necessary for them to decide whether Barnfield Branch was a natural watercourse or not, because the result would be the same if it was a mere depression or ravine, if it carried off a considerable amount of water from a considerable area of land, and yet expressed the opinion, founded upon the testimony, that Barnfield Branch did not fall within the definition given by the court of the natural watercourse.

"2. That the water of Barnfield Branch, according to the description incorporated into the charge, and purporting to embody testimony of witnesses relating to that subject, could not be lawfully diverted from the channel, and if the defendant had diverted it when the proper construction of the road did not require it to be done, it was guilty of trespass.

"3. That it was the duty of defendant to have constructed a culvert at the point of intersection of said branch."

The consideration of the questions thus raised necessarily leads to the discussion of the rights of owners of land to divert a natural stream, flowing over it, from its channel, or to collect surface water falling or flowing thereon, and discharge it by means of an artificial drain. It must be remembered, at the outset of this discussion, that "a railroad company enjoys the same privilege as any other landowner, but no greater, to be exercised under the same restrictions and qualifications."Staton v. R. R., 111 N.C. 278; Jenkins v. R. R., 110 N.C. 438. This principle is subject to the qualifications that necessarily arise out of the fact that such companies usually acquire not the absolute ownership, but a dominion for corporate purposes, conferred with the paramount (696) object of benefit to the public. One of the privileges, passing as an incident, is, of course, that of constructing such embankments as may be needed to insure the safety of transportation. The principle is stated by Gould, in his work Waters, sec. 273, as follows: "Damages caused by the displacement or obstruction of surface water may be included in the assessment of damages under the statute caused by the original construction of the road"; but the author adds in the same section, "A railroad corporation has no right, by the erection of embankments, the construction of culverts, or the digging of ditches, to collect and discharge unusual quantities of surface water upon adjoining lands." In Staton v. R. R., 109 N.C. 337, the late Chief Justice Merrimon said: "Unquestionably, the defendant had the right to cut through and along its right of way and keep in repair such appropriate ditches and culverts as were necessary to carry off the surface water to a natural drain or outlet adequate to receive it." In Porter v. Durham, 74 N.C. at p. 67, the court said: "It has been held that an owner of land is obliged to receive the surface water which falls on adjoining higher land, and which naturally flows on the lower land. Of course, when the water reaches his land the lower owner can collect it in a ditch and carry it off to a proper outlet, so that it will not damage him. He cannot, however, raise any dyke or barrier by which it will be interrupted and thrown back on the land of the higher owner. While the higher owner is entitled to this service, he cannot artificially increase the natural quantity of flow by collecting it in a ditch and discharging it upon the servient land at a different place or in a different manner from its natural discharge."

The counsel for appellant insists that the court erred in instructing the jury that it was the duty of the defendant to provide a separate culvert to carry off the water of Barnfield Branch, whether it was a natural watercourse or a ravine or depression, through which the surface water falling upon any considerable area of land was (697) drained. If it was a natural watercourse, then by diverting it from its channel above the railroad, unless it was necessary to do so in order to make the best provision for the safety of passengers and property to be transported over the road, the defendant company incurred liability for at least nominal damages and for such actual damage for overflow as was caused to the plaintiffs' land above the railroad or below it. Adams v. R. R.,supra, at p. 332. But leaving the question whether what was called Barnfield Branch was only a ravine which served the purpose of discharging the surface water from a large area or a natural outlet an open one, the court charged the jury, among other things, as follows: "If the safety of the roadbed permits, and within reasonable limits as to costs, the defendant should make a way for water to pass in its natural way or outlet, and in the present case, if such safety and expense permitted, the defendant should have placed a culvert at the point where this branch crosses the road and so permitted the water to take its natural way, and failing to do so, if damage is thereby caused to plaintiffs' land, the jury should answer the fifth issue (which involved the question of the wrongful diversion of Barnfield Branch, etc.) `Yes.'" The jury, therefore, acted upon the idea that if the construction of the culvert would not imperil the safety of passengers and freight transported over the line, and the cost would be, in the opinion of the jury, reasonable, they must find that the company was negligent in failing to provide the culvert, even though Barnfield Branch was not a natural watercourse, but only a depression extending across the line of railroad and well defined, both where it entered and where, in high water, it emerged on the other side from the Great Swamp. It is difficult to obtain from the evidence and charge a very clear idea of the topography; but the charge in its application to the testimony must be construed to mean what (698) we have stated. The general rule, clearly deducible from the authorities cited, is that the diversion of a natural stream from its channel by a railroad company is always deemed a trespass when it is not necessary to the skillful construction of its road to change its course. Adams v. R. R., supra. But it is equally well settled that generally the lawful authority to divert surface water accumulating at a proper embankment, the building of which was necessarily within the contemplation of those who assessed or agreed upon the cost of the right of way, and to carry it in side ditches constructed on the right of way, to its natural outlet, or to some natural "outlet adequate to receive it," is included in the estimate of such cost. Staton v. R. R., supra; Gould,supra. We are not prepared to hold, upon any view of this testimony, that the channel of Barnfield Branch was a depression of such character that though it discharged only surface water, it nevertheless came within the reason which induced the courts to hold it an actionable injury to close a ravine and pond back on the abutting owners of land or carry to a suitable outlet by side ditches the water that usually escapes through it, though some of the courts of this county, with the approval of respectable text-writers, have held that deep depressions in a hilly region through which the water from large areas is discharged sometimes fall within the reason of the rule, and that in such cases the duty, when railroads cross them, is the same as if the crossing were over a branch flowing from a perennial spring. Gould, supra, sec. 273. But after the judge had told them that in no view of the testimony did the Barnfield Branch fall within the abstract definition of a watercourse previously given, he further instructed them that it was the duty of the company to have put in the culvert, unless the cost would have proved unreasonable or its construction would have made the road unsafe. Some of the witnesses had testified without objection that the branch was a natural watercourse; others had stated facts which, if believed, would (699) lead to the inference that it was not. Though it may not have been material in discussing the question to which the court had previously adverted, to adapt the instruction as to the nature of natural watercourses to the evidence, it was manifestly erroneous, in view of the conflicting testimony on which the defendant's liability depended, to express the opinion that the branch was not a natural watercourse. The Code, sec. 413, and cases cited on p. 389 Clark's Code. This error was covered by the exception to the instruction asked and to that given, in lieu. But we see nothing in the testimony to take this case out of the general rule which permitted the defendant to divert the surface water collected above an embankment constructed skillfully, and in the exercise of authority acquired as an incident to the right of way, along its ditches to its natural outlet, at a different place from its previous entrance through a depression, but at a point where it was amply sufficient to receive such water. In giving the instruction that it was the duty of the defendant to build a culvert over what was known as Barnfield Branch, as well as in expressing the opinion, where the evidence was conflicting upon the question, that it was not a natural stream, there was error, for which a new trial must be granted. It would seem, also, that in response to the prayers more specific instructions adapted to the testimony should have been given as to the character of the branch. We have discussed the main questions as to which we approve of the rulings of the court, because it may be important to do so in order to aid the court in the next trial.

New trial.

Cited: Waters v. Lumber Co., ante, 654; Wool v. Bond, 118 N.C. 2;Simmons v. Allison, ib., 778; Parker v. R. R., 119 N.C. 687; Tucker v.Satterthwaite, 120 N.C. 122; Craft v. Lumber Co., 132 N.C. 155; Parksv. R. R., 143 N.C. 294; Moseley v. Johnson, 144 N.C. 263; Davenport v.R. R., 148 N.C. 293; Roberts v. Baldwin, 151 N.C. 408; Carr v.Alexander, 169 N.C. 667; Turner v. Livestock Co., 179 N.C. 459.

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