Overton v. . Sawyer , 46 N.C. 308 ( 1854 )

The plaintiff owned and cultivated a tract of land adjoining the lands of the defendant, and of one Chamberlain. The plaintiff had cut a ditch across his own land into a natural drain or depression, on the land of Chamberlain, through which the water from the adjacent lands had been used to flow for ten years, and that from the lands of the defendant for more than twenty eight years. A ditch had been cut through this depression some years before, but, from being neglected, had become filled up with dirt, and with the permission of Chamberlain, the plaintiff cleared out this ditch and deepened it; and in so doing, made an embankment along the side of the ditch, and near the line of the defendant for its whole length, which was about fifty yards. Both the ditch and embankment were entirely on the land of Chamberlain, but were near the line of the defendant. After this embankment was made, the water was ponded and thrown back upon the swamp land of the defendant, so as to injure it.

There was also on the back part of defendant's land another drain called the Sanderlain ditch.

To prevent the injury which this embankment was causing to his adjacent land, the defendant went upon the land of Chamberlain and removed a part of the same, and in consequence of the additional flow of water, which was thus turned into the ditch below, the water was obstructed and ponded back on the plaintiff's land, by which he was injured.

The plaintiff insisted that the defendant had acquired no easement or right to drain off the water, through this natural channel, and that if he had such a right, he had no right to go upon the land of another to remove the obstruction: especially as he had the means within his power, of draining through the Sanderlain ditch.

The Court charged the jury, that if the defendant had been accustomed to drain his land through the run or natural drain for twenty-eight years, and the plaintiff, by throwing up an embankment, had obstructed the flowing of the water and ponded it upon his land and thereby injured it, this embankment amounted to a nuisance which the defendant had a right to abate. To which instructions the plaintiff excepted.

The jury found a verdict for the defendant.

The plaintiff obtained a rule for a venire de novo, which on argument, was discharged, and the plaintiff appealed to this Court. Without reference to the acquisition of the casement by prescription, the defendant had a right to have the water allowed to pass off of his land through the natural drain; and when the plaintiff, by means of the embankment across this natural drain, obstructed the water, and interfered with this right of defendant, the latter had a cause of action against the former, for causing the obstruction. Instead of bringing an action, he removed the obstruction. It may be, that Chamberlain might have maintained an action against him, for coming upon his land; but we can see no ground upon which the plaintiff can maintain an action against him, for merely undoing that which the plaintiff ought not to have done. If a man turns his hog into the cornfield of a neighbor, and the latter pulls down the fence and drives the hog out — doing no unnecessary damage, can he be sued for doing so, upon the ground that he ought to have let the hog alone, and brought an action for the trespass? There is no error.

Judgment affirmed.