Opinion
(September Term, 1895.)
Diversion of Waters by Railroad — Appeal — Record — Surveys.
In an action for the diversion of surface water or the water of natural streams by the construction of railway lines, surveys of the locality, made under order of the court, must be introduced and accompany the record on appeal, or showing be made by appellant that he was prevented by the court or the opposite party from so doing, on penalty of liability to dismissal of appeal or affirmance of judgment on the ground that it is impossible to review the alleged errors.
ACTION tried at December Term, 1894, of PITT, before Mebane, J., and a jury.
The action was for damages for diversion of water by defendant on the lands of the plaintiff. There was judgment for the plaintiff, and defendant appealed.
J. E. L. I. Moore and J. L. Fleming for plaintiff.
J. L. Bridgers for defendant.
In nearly all of the cases that have for some years past been brought up to this Court to test the liability of railway companies for flooding lands, the statements have been confused, and we have encountered great difficulty in comprehending the facts, mainly for want of clear discriptions of the relative positions of points of which it has seemed almost essential that we should be able to fix the locations. (615) We have concluded, therefore, to give notice of a rule that in every case where an action is brought to recover for the diversion of surface water or the water of natural streams, either in the original construction or subsequent improvement of railway lines, parties who go to trial without having a survey made and sending up, as exhibits to the statement of the case on appeal, fifteen maps of the locality where the injury is alleged to have been sustained may expect that the judgment of the court below will be affirmed or the appeal dismissed. The surveys must be made under an order of court appointing two surveyors, one selected by each of the parties, where they cannot agree to the appointment of any particular person, and requiring that the relative positions of the intersections of ditches or natural streams with each other or with the railroad line and the location and area of swamps, where material, shall be laid down upon such maps with explanatory notes, showing by letters or figures where all points that it may be material to locate are situated.
Hereafter, unless an appellant can show that he has made diligent effort to have such maps prepared, and has been prevented by the court or the opposing party from accomplishing that end, he may expect the appeal to be dismissed or the judgment below affirmed, on the ground that it is impossible to review the alleged errors. Durham v. R. R., 113 N.C. 240. In this case it is adjudged that a new trial be granted, to the end that the contentions of the parties may be presented to the court below and to this Court in a more intelligible manner.
New trial.
Cited: Stephens v. McDonald, 132 N.C. 135.
(616)