MERRIMON, C. J., concurring in part and dissenting from part of the opinion of the Court.

When the case was called for trial the defendant made objection to H. T. Brown, a juror, and alleged for cause that the said juror was on the prosecution bond of one Everett in an action against the defendant for flooding said Everett's land, lying on the same stream as plaintiff's land, and damaged by the same acts as that alleged by the plaintiff in this action.

Cause disallowed, and defendant excepted.

It also appeared that said juror was related to said Everett. Defendant (439) assigned said relationship to Everett as a cause of challenge.

Cause disallowed, and defendant excepted.

The defendant then challenged said juror peremptorily.

Having challenged four jurors peremptorily, the defendant offered to challenge one Griffin, a juror, peremptorily, which challenge was not permitted by the court, and the defendant excepted.

After the jury was impaneled, the defendant moved the court "that the jury, after the testimony has been finished, be sent, under the direction of the court, to view the land alleged to be damaged, and the land over which the defendant is alleged to have drained water by the construction of its road, and the said watercourses, so as to damage the lands and crops as set out in the complaint."

It appeared that the land alleged to have been damaged was seventeen miles distant from the courthouse.

The testimony in the case was closed later Friday night, and the court expiring by limitation at 12 M. on Saturday night following, the judge found that it was impossible to send the jury to view the land and conclude the argument and charge the jury within that time. For these reasons the court declined to grant the motion. The argument in the cause was concluded about 3 o'clock p. m., Saturday, and the charge about 5 o'clock p. m., the court holding a continuous session.

The defendant excepted.

It was in evidence that in September, 1888, the defendant company extended its road from Scotland Neck to Greenville, and that for a portion of the way it was constructed through a low pocosin country; that in the construction of said road from the direction of north to south it was constructed through "Devil's Garden," and ditches were dug along and within its right of way to what is known as "Arden Branch"; "Devil's Garden" is a basin, low, depressed formation, covering about 250 acres; it is lower than the immediate surrounding (440) country; it is surrounded on all sides by a natural elevation or margin; it has no natural outlet, except that in seasons of heavy rainfall a small portion of the water which accumulates in it overflows its margin, the greater part of which finds its way into "Arden Branch," and thence into "Coburn Swamp"; before the building of the railroad it stood with water all the time, varying from half-leg to knee-deep; that it was covered with a thick, heavy growth, consisting of pine, maple, bay, gum, gall bushes, reeds, and such like. It is admitted that "Devil's Garden" was not a watercourse, and that the water which accumulated and stood in it was rain water or surface water. The evidence tended to show that the ditches along the defendant's right of way drained all the water of "Devil's Garden," both that along its right of way and that covering the entire basin, south into "Arden Branch"; that "Arden Branch" discharged its waters into "Coburn Swamp," which was admitted to be a natural watercourse; that the lowergrounds of this swamp where the railroad crosses it were some two or three hundred yards wide, with hills on either side eight or ten feet high; "Coburn Swamp" was canaled by the adjacent landowners up to within a short distance from where the railroad crosses it; that prior to the building of the road it was effectual as a drainage-way for said lands; that ten times as much water comes down the swamp or canal now as before the railroad was built; the lands along the swamp are cultivated up to the canal; the lands of the plaintiff are not contiguous to the railroad, but lie two and one-half miles down "Coburn Swamp"; the ditches cut by the railroad were wholly within its right of way, and there was testimony tending to show that they were necessary in the construction of the roadbed to make the same safe for the transportation of freight and passengers, and also that the road was properly and skillfully constructed; that (441) "Arden Branch" did not cut the rim or margin of "Devil's Garden," and only served to carry off such water as surmounted the elevation or margin which surrounds it is very wet seasons.

The evidence in regard to the damage was substantially as follows:

The canal was successful as a means of drainage before the railroad was built; since the railroad was built, about 38 acres of land has been overflowed; a crop has not been made on the land since the road was built; not much damage done to the crops in 1888, because the crops were matured before the ditches were dug. In 1889 no crop of any account was made; 1890 was over an average year, and only about half a crop was made; 1891 was an average year as to rainfall, and the land was overflowed more than ever before and the road was built; the lands are overflowed when there are heavy rains; the water stands in the ditches so that when there is a heavy rain the lands overflow; formerly the ditches would carry off the waters from heavy rains; rains which overflow now, formerly did not do so.

Verdict and judgment for plaintiff. Appeal by defendant.

CLARK, J.:

The granting or refusal of the application for the jury to view the premises is a matter which rested in the discretion of the trial judge. On some occasions it may be very useful and, indeed, almost necessary. It was permitted on the trial of the Cluverius case, 81 Va. 787, and there are many precedents elsewhere for such practice. It was allowed in this State, without objection, on the trial (for murder) of Gooch, 94 N.C. 987, and it has been done in many other cases. On the other hand, it is most usually unnecessary, and would be (442) productive of delay and expense and, on occasions, possibly, of irregularities. The matter is one which must be left to the sound discretion of the trial judge, by whom such motion should only be granted when it shall seem clear to him that it is required in the interest of justice. In the present case it would seem that a map of the locality and the evidence of witnesses should have been amply sufficient to convey to the jury an intelligent comprehension of the entire contention of the parties.

The objections to the jurors were properly overruled. It was not a disqualification that a juror was a surety on the prosecution bond of another plaintiff, or related to such plaintiff, in another action against this defendant for a similar cause of action.

The court below committed error in failing to put its charge, as to the law, in writing when requested, as here, in apt time. The Code, sec. 414. The reason given by the court, that while it reduced nearly its entire charge to writing, it did not fully comply with the statute, "because it was impracticable to put the whole charge in writing in the time within which it was necessary to conclude the trial," does not cure its failure to observe the requirement of the statute. If there was not time to do so, the court could, in its discretion, have made a mistrial. The defendant had a right to insist on the entire charge as to the law being put in writing, either to the end that it should be handed to the jury on their retirement (Laws 1885, ch. 137), or to avoid differences between counsel as to its purport, in making up a case on appeal, though this does not require that the recapitulation of the evidence should be put in writing. Dupree v. Insurance Co., 92 N.C. 417; Drake v. Connelly, 107 N.C. 463; Lowe v. Elliott, 107, N.C. 718.

As the case goes back for a new trial, it is but proper that we should notice some of the general principles which are applicable to this and similar cases. In doing this, we deem it unnecessary to refer to the multitude of conflicting decisions in other states upon this (443) much debated subject. We are content to accept, in a great measure, the conclusion of such discriminating authors as Mr. Angell (on Watercourses) and others. First, we are of the opinion that, in respect to the drainage or diversion of surface water, a railroad company enjoys the same privileges as any other landowner, but no greater, to be exercised under the same restrictions and qualifications. Secondly, a railroad company or other landowner has a right to cut ditches and conduct the surface water into a natural watercourse passing through its land, and if this right is exercised in good faith, and in a reasonable manner, for the better adaptation of the land to lawful and proper uses, no damage can be recovered if the lands of a lower owner are injured. Mr. Angell (p. 134) says: "No doubt, the owner of land through which a stream flows may increase the volume of water by draining into it, without any liability to damages by a lower owner. He must abide the contingency of increase or diminution of the flow of water in the channel of the stream, because the upper owner has the right to all the advantages of drainage or irrigation reasonably used which the stream may give him."

The foregoing passage is quoted with approval by the Court of Appeals of New York in Waffle v. R. R., 53 N.Y. 11. The Court says: "The authorities in this country and England upon this subject are collected and revised by the author, and clearly establish the right claimed by the defendant. Goodale v. Tuttle, 29 N.Y. 459; Rawsbron v. Taylor, 11 Exch., 369; Gannon v. Hargadin, 10 Allen, 106; Miller v. Lanbach, 47 Penn., 154. A proprietor having the right to reclaim his land by draining the surface water therefrom by ditches discharging into a stream running thereon, which is the natural outlet of the water, the object of doing so, whether for the erection of buildings, (444) agriculture, or constructing a railroad thereon, is wholly immaterial."

The principles thus laid down are not only founded upon sound reasoning and natural justice, but they underlie the entire system of drainage as to surface water in North Carolina, and if they are departed from because of a few "hard cases" (which are the "quicksands" of the law), the evil results by way of vexatious litigation among neighboring landowners, as well as by doubts and confusion as to their respective rights and liabilities, will be simply incalculable. It would amount to a revolution in the law, which, for convenience, as well from a sense of justice, has been tacitly adopted and acted upon by them for a century or more. This right, however, must be exercised in a reasonable manner, and this must necessarily be determined in view of the particular circumstances of each case. For instance, if the stream is inadequate, and injury may result to a lower owner, the right to cut such ditches must be confined strictly to mere surface water, and the ditches must not be so constructed as to divert the surface water from a direction in which, by the general inclination of the land, it naturally flows.

Skillful farmers, in the hill country and in the mountains of our State, are accustomed to construct hillside ditches so as to discharge the surface water through either of two ravines on opposite sides of a hill, and we are not to be understood as holding that, in so doing, they incur any liability to those through whose land the water passes, if the ditches are made skillfully and with an eye single to affording the best protection to the land against washing.

In the present case it is admitted that "the ditch complained of was wholly situate upon the defendant's right of way; that it was necessary; that it was skillfully constructed, and that it was adequate in its capacity to carry the surface water into a natural drain," which was not flooded except in case of a heavy rainfall; and that it carries (445) off only surface water, that is, the rainfall, and empties it into the natural channel into which, by the configuration of the land, the rainfall would naturally go if the land was drained. Whether there was an accumulation of water in "Devil's Garden" to such an extent that the drawing of it off would inflict damage upon the plaintiff is not a question before us. It had heretofore been drained off, and this action was not brought on that ground. Since such drawing off of the accumulated water, the are of "Devil's Garden" has been, like any other redeemed and drained area, and the defendant's ditches cut for the purposes of its roadbed, it is admitted, only drained the surface water which comes down by rainfall thereon, and thence upon the right of way, and which is conducted by these ditches into a natural channel. It is contended by the defendant that this natural channel (Coburn Swamp) is the drainway of thousands of acres, probably over a hundred thousand, and these ditches only add to it the rainfall of 250 acres, part of which already went into said natural channel before the ditches were cut (the rest having, therefore, been retained in the pocosin and evaporated), and that so infinitesimal an addition to its volume of drainage could not possibly make the channel, by reason of such addition, inadequate. It is further contended by the defendant that, by the uncontradicted testimony, the natural channel of Coburn Swamp was 200 yards wide and 7 or 8 feet deep; that nature had thus furnished a channel more than adequate, hence the flow was sluggish and shallow, and formed a swamp; that the plaintiff seeing this and wishing to utilize a part of the useless bed of the swamp, made an artificial narrower and deeper channel, or canal, within the natural channel or swamp; that, while he had a right to do this, and his enterprise should be encouraged, yet it gives him no right to complain that the defendant, by better and necessary drainage of its own land, has made the artificial channel inadequate. The defendant asserts that the natural channel was big enough, but that it is the plaintiff's artificial (446) channel which is too small. The plaintiff's contention is equally earnest to the contrary to this, and he also insists that by reason of the cutting of the rim of "Devil's Garden," much water that heretofore collected there from a large area, and which disappeared by way of percolation and evaporation, is now thrown into an inadequate watercourse. The facts are not all admitted or found, and hence we need not express any conclusion beyond the general principles above laid down, as upon another trial the facts will doubtless be more explicitly found.