Opinion
(December Term, 1847.)
1. Where A grants a license to B to flow the water from B's land through A's ditch, B has no right to increase the quantity of water so flowed, either by adding to the number of his ditches or clearing new land or enlarging his ditches, so that the flow of water will be greater than it was when the license was granted; and A may recover damages for any injury sustained thereby.
2. License to turn one stream upon A's land is not an authority to stop that, at the party's pleasure, and turn another in its stead.
APPEAL from the Superior Court of Law of CHOWAN, at Fall Term, 1847, Pearson, J., presiding.
A. Moore for plaintiff.
Heath for defendant.
This is an action on the case for a nuisance, by the defendant's causing water to flow from his land on an adjoining tract belonging to the plaintiff, whereby the plaintiff's land was flooded and injured and the crops growing thereon destroyed. It was brought 27 March, 1844.
The facts were that one Haughton, under whom the plaintiff derived title, agreed orally in 1839, with the defendant, that he might cut two large ditches through Haughton's land, into which he might open ditches at the upper end from the defendant's own land, so as to drain the water from the defendant's land into those larger ones, and thence through Haughton's tract. The defendant immediately cut the ditches from the line between himself and Haughton, through the plantation of Haughton, until they came together in the plantation, and thence to a swamp without the plantation. Haughton expressed himself satisfied with the ditches, when done; but it was further agreed that if they should prove insufficient to drain both plantations, the defendant should extend the large ditch lower (191) down the swamp.
The defendant then cut small ditches on his own land, so that, by means of some leading into the larger ones through Haughton's land, he drained the land he then had in cultivation, and, according to the evidence, caused a greater quantity of the water to pass off the defendant's land through Haughton's plantation than otherwise would.
In December, 1839, Haughton died, and the plaintiff entered into his tract under a purchase of the fee from his executors.
In 1840 the defendant opened a ditch from his land through one Rascoe's, in an opposite direction from the plaintiff's land, by means of which a considerable quantity of the water drained from the defendant's plantation which otherwise would have passed through the ditches on the plaintiff's land. In the spring of 1842 the defendant cleaned out several of the ditches on his own land, leading into those through the plaintiff's land, whereby a greater quantity of water was drained from the defendant's land into the plaintiff's, and with more rapidity than otherwise would have been.
In the early part of July, 1842, there was a very heavy rain, and the quantity of water that flowed down the main ditches from the defendant's land, besides that which ran into them from the plaintiff's own land, was so great as to become ponded at the lower end of the ditch, at the swamp, and to flow over the banks of the ditch and cover several acres of the plaintiff's land; and in August following a similar occurrence happened. On 11 July, 1842, the plaintiff gave the defendant notice that, after 1 January, 1843, he would resort to measures to protect his lands against the water by which they were flooded by the two ditches running from the defendant's farm, and that he should hold the defendant responsible for such damages as he had sustained or might suffer in consequence of such (192) flooding.
During December, 1842, and January and February, 1843, the defendant cleared fifty acres more of his land, and dug ditches through the same, so as to turn the streams and water falling thereon, and cause them also to flow from his land into the ditches through the plaintiff's land; and at the same time he cleared out the ditches that he had before made, as above mentioned, so as to increase considerably the quantity of water flowing from his onto the plaintiff's land.
The counsel for the defendant insisted that the notice was not sufficient to enable the plaintiff to recover, and that, at all events, he was not entitled to damages for the loss sustained from the overflowing of his land by the rain and storm of July, 1842, before the notice was given; and, finally, if the jury should believe that, by means of the ditch through Rascoe's land, as much water was diverted from the plaintiff's land that would have gone on it from the defendant's old cleared land as he caused to flow on the plaintiff's land from his new clearing by the ditches through it, that then the plaintiff had no cause of action. But the court held otherwise on each of those points, and from a verdict for the plaintiff and judgment thereon the defendant appealed.
This is the same case which was here in June, 1844, 26 N.C. 424. But upon the second trial the facts have turned out to be very different from those formerly stated. There the action seemed to have been brought because the defendant merely left things standing as they were when Haughton's license for the enjoyment of the easement expired (193) by the death of that person, for the defendant had done nothing afterwards. We held the defendant could not be sued for being thus merely passive under such circumstances; at all events, without previous notice to abate the nuisance by stopping his drains or diverting the water. We still think that position was right, though we were aware at the time that it carried the effects of a license once granted, but terminated, to the extreme verge of the law, and upon very nice distinctions. As the case now stands, however, all ground for a notice has sunk; for the defendant, since the license ended, has been active in continuing and increasing the nuisance by scouring his old ditches and opening new ones, whereby there is a much larger flow of water on the plaintiff's land than there would have been had the defendant really been passive. The defendant was, therefore, clearly liable for all the damages arising from such increase of water; indeed, for all the damages sustained from the water, since by acting, when he had no license to increase the quantity of water, he adopted the nuisance as it then stood and made himself responsible for all consequences. No doubt, a license to drain one's land, by carrying the water on the land of another, includes the power to make ditches for that purpose, and also to cleanse them, while the license is in force. But, when it is determined, there is no more power to scour an old ditch, whereby the flow of water is increased, than to make a new one. They both stand on the same footing, being unauthorized.
It is very clear that the last point made is also against the defendant. In 1840 he turned in another way a part of the water that he had once been authorized to drain through the land that now belongs to the plaintiff. That was so much the better for the plaintiff, certainly; and the defendant may be entitled to his thanks for it. Two years afterwards the defendant cleared other land, not before drained through the plaintiff's canals, and turned the water from it upon the (194) plaintiff. That is the state of the case; and when sued for this latter act, which was wholly unauthorized, the defendant asks an abatement of the damages or a verdict for him because he has not done the plaintiff more damage by this injury than he would have suffered if the defendant had not done him the favor two years before. Amends cannot be made in that way for trespasses and nuisances, even if it be supposed that the defendant had been at liberty to allow a continuing flow of the water through the plaintiff's land which he carried through Rascoe's. License to turn one stream upon my land is not an authority to stop that at the party's pleasure and turn on another in its stead. The two acts are entirely independent, and no deduction can be made from the damages, accruing from one, on account of a benefit derived from the other.
PER CURIAM. Judgment affirmed.
Cited: Parker v. R. R., 123 N.C. 73.
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