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S. v. New

Supreme Court of North Carolina
Jun 1, 1902
41 S.E. 1033 (N.C. 1902)

Opinion

(Filed 19 June, 1902.)

Obstructing Justice — Public Officers — Highways — The Code, Secs. 2025, 2027, 2040 — Laws 1899, Ch. 581.

Where a person obstructs an overseer in cutting a ditch across his land to drain a public road, he is not guilty of obstructing justice, there being no provision of law for taking private property for this purpose and the payment of just compensation therefor.

INDICTMENT against Wesley New, heard by Hoke, J., and a jury, at April Term, 1901, of SAMPSON.

This is a criminal action for the obstruction of a public officer in the discharge of his duty.

The evidence showed that the defendant was the owner of 2 1/4 acres of land, all cleared, fenced and under cultivation; that the public road led from the corporate limits of Clinton, at the Barden House, to Stevens Bridge, and that E. C. Williams was the overseer of said section, duly appointed and acting. That in January, 1901, said overseer, with his hands, were working his section. That in the public road, on the outside of defendant's fence, there was a basin or low place in the road; that in wet times, when there was over the ordinary rainfall, the water from this basin overflowed through defendant's field into a basin similar to this one in the road, and from defendant's field the water flowed only in extra wet times to another basin on Draughan's lands, the adjoining landowner, which was uncleared. The defendant New's field was 70 yards wide at this point; that near the back fence from the road was the lowest place in defendant's field; that the defendant was (732) in his field with the iron scabbard to a sword beating down cotton stalks, when the overseer ordered his hands to enter the field; that the defendant forbade the overseer and hands to enter. They did enter, and passed to the low place near the back fence. At this point, about 70 yards from the road, E. C. Williams, overseer, ordered his hands to begin cutting a ditch, intending to cut it to the basin in the road to dry the water off the road and into defendant's field. Defendant again forbade both overseer and hands.

The overseer then told defendant he intended to cut the ditch anyway. Defendant stuck the scabbard into the ground and said to the overseer:

"Not unless you do it over my dead body."

The overseer then ordered his hands to stop, and they did so. The evidence showed the road to have been a public road for sixty years, and at this point there were fences on both sides of the road, 22 feet from each other. That in very cold weather in winter the ice on this water would bear a team and loaded wagon. That the water was from 4 to 6 inches deep in the basin and about 40 yards long. That it was not boggy, and was passable at all times, but when the ice was very thick was dangerous, on account of the teams slipping on the ice. That defendant purchased the 2 1/4 acres from John Dickson, who bought it from Walter Draughan and cleared it up. That before Dickson bought it, and while it was in the woods, the overseer of the road had cut a trench about four inches deep into the woods to dry this basin, which trench was cut by the overseer along the natural drain for the water, this being the only natural drainage to the basin in the road.

The defendant, through his counsel, requested the court to instruct the jury that the overseer had no legal authority to enter defendant New's field to cut a ditch to dry this basin, and such entry, after being forbidden by New, was a trespass if made by the (733) overseer. That under all the evidence the defendant was not guilty. That no proceedings having been shown to condemn that part of defendant New's field, defendant was not guilty for resisting the trespass of the overseer. That defendant had a right to resist a trespass such as this, and was not guilty. The court instructed the jury that it was a misdemeanor to obstruct a public officer in the discharge of his duty. This obstruction must be willful. If the evidence was believed, a public officer, an overseer of a public road, was obstructed. That if it was necessary to the safety of persons and teams passing over this road to relieve the roads of this water, and if the natural drain of the water was through defendant's field, then the defendant would be guilty, if the overseer entered the field only for the purpose of cutting the small drain to relieve the road of the water, and if this was necessary for the safety of passengers.

This, however, can only be done by the overseer from necessity to relieve the road, and make it safe for traveling. If the overseer entered for such purpose, and under such necessity, then he would be in the proper discharge of his duty, and defendant would be guilty. If, however, there was no present necessity to relieve the road, and it was not the natural and proper drainage way, and it was not necessary to relieve the road, the defendant would be not guilty. Then the overseer would be a trespasser, and defendant had a right to obstruct him.

The State contends that there was ice in the basin, and this threatened the safety of travelers; that the overseer attempted to drain the water off to relieve the road. That it was necessary to relieve it; that this was the only practicable way to relieve the road; that the road always has been relieved that way. The defendant contends that there was (734) no ice there then; that there was no natural drainage-way to this basin; that to drain it on defendant's lands would ruin his crops. That defendant would have to cut a ditch 400 yards through Draughan's land to relieve his field; that the overseer could cut a ditch 2 feet deep, 35 yards long, on his own land, and relieve the road of all water; that no former overseer had cut a ditch into this field; that when the lands were woods, then if a trench had been cut, this would not now give the overseer a right to cut this ditch.

The defendant, in apt time, objected to that part of the court's charge which in substance said: If there was a present necessity to relieve the road, and if the overseer entered the field for this purpose, he would be in the proper discharge of his duty, and the defendant would be guilty; objection overruled, and defendant excepts. The defendant excepts because the court refused the instruction prayed for by defendant.

From a verdict of guilty and judgment thereon, the defendant appealed.

Robert D. Gilmer, Attorney-General, for the State.

John D. Kerr for defendant.


FURCHES, C. J., and CLARK, J., dissenting.


It is evident from the above statement of the case on appeal that there was no natural drainway for the basin in the road across the land of the defendant. Natural drainage is where water runs in a state of nature without artificial assistance. The mere fact that it would require the digging of a ditch 70 yards long to carry the water onto the defendant's land would show that it did not go there naturally. Even then it would not reach a natural watercourse, nor even an artificial waterway, but would be turned loose in a low place upon the defendant's land, to his manifest injury. He would be compelled to let it lie there, ruining his crops and destroying the value of his land, or dig another ditch 400 yards long through the land (735) of another man. It seems that the overseer could have relieved the road of all water by cutting a ditch 35 yards long and 2 feet deep through his own land on the opposite side of the road, but he preferred to dig 70 yards of ditch upon another man's land than 30 yards upon his own land. In this he showed fine business sense; but has he the right to thus appropriate the land of another, without compensation, and, as far as we can see, without authority of law? We all know that a ditch is always more or less of a nuisance. It is frequently a necessary nuisance, but a nuisance none the less. It divides a field so that a man can not get from one side to the other without building bridges or ruining the ditch. It takes up not only the land occupied by the ditch itself, but generally much more with its banks and the weeds and briers that always grow on ditch banks. It is true, these banks can be kept clean, but this requires much additional labor and expense. It thus appears that digging a ditch through the land of another is not only an appropriation of a certain part of the land, but is a direct injury to the remainder. Suppose the overseer had dug this ditch, how would the defendant have obtained compensation? No way has been called to our attention, except an action for the trespass, and this it would be difficult to maintain if the overseer had a right to cut the ditch. If he had no right to cut it, the defendant is not liable to indictment for stopping him.

There is no authority either for entry or compensation under chapter 581, Laws 1899, because section 27 thereof expressly provides that this act shall not apply to Sampson County, and there is neither proof nor allegation that Sampson County has adopted said act, or any part thereof, even if it could lawfully do so. The only sections in The Code that we find applicable to the question are 2025, 2027 and 2040. Section 2025 provides that "Where, by the overseers, it may be (736) deemed expedient to make or repair causeways on the same, they shall be at least 14 feet wide; and earth, necessary to raise or cover them, shall be taken from either hand, so as to form a drain on each side of the causeway."

Section 2027 provides that "Overseers may lawfully cut poles and other necessary timber for repairing and making bridges and causeways. And whenever earth shall be needed on a public road, and it can not be conveniently procured on either side of the causeway, the overseer may lawfully take the earth from any adjoining land."

Section 2040 is as follows: "All roads shall be laid out by a jury of five freeholders, to the greatest advantage of the inhabitants, and with as little prejudice as may be to lands and inclosures; which laying out, and such damage as private persons may sustain, shall be done and ascertained by the same jury on oath; and all damages by them assessed shall be deemed a county charge." Nowhere do we find any authority for cutting ditches into private property. On the contrary, it clearly appears that The Code contemplates the filling up of such slight depressions, and their drainage by lateral ditches on the side of the highway.

In the present case the standing water, when it stands at all, is only from 4 to 6 inches deep. This could easily be filled up, either with rock and dirt or by cross-laying with poles and piling dirt on them. This would permanently remedy the evil at little expense, and injure no one.

It would be an intolerable nuisance to permit every road overseer, in his unbridled discretion, to cut ditches through private property, whenever and wherever he saw fit, simply to drain mudholes in a road that he could easily fill up. If the highway were so located as to be absolutely incapable of drainage without draining through private property, it could be relocated, and perhaps an additional casement acquired, (737) under section 2040 of The Code; but no such question is before us.

The appropriation of private property to public uses has been so recently and so fully considered in Phillips v. Tel. Co., ante, 513; Mullen v. Canal Co., ante, 496; and Rice v. R. R., ante, 375, as to require but little further comment. It is well settled that private property can not be taken, even for a public use, without express legislative authority and the payment of adequate compensation. Any other appropriation would be in violation of the Declaration of Rights in the Constitution of North Carolina, and of the Fourteenth Amendment to the Constitution of the United States. Cornelius v. Glenn, 52 N.C. 512; Johnston v. Rankin, 70 N.C. 550; R. R. v. Chicago, 166 U.S. 226.

That this is the rule in other jurisdictions is shown by an examination of the authorities. In Gould on Waters the author says, in section 271: "An owner of land has no right to rid his land of surface water or superficially percolating water by collecting it in artificial channels and discharging it through or upon the lands of an adjoining proprietor. This is alike the rule of the common and civil law; and a municipal corporation has no greater right in this respect than a private landowner." In support of this proposition the learned author cites a long line of authorities from Indiana, Minnesota, New York, Maryland, New Jersey, Massachusetts, Colorado, Georgia, Pennsylvania, Illinois, Nebraska, West Virginia, Missouri and Wisconsin. In Lewis on Eminent Domain, the author says, in section 87: " . . . Causing water to flow upon land is a clear violation of the right of exclusive occupation and enjoyment, which can not be taken or interfered with without compensation." And again, in section 103: "Nevins v. Peoria, ( 41 Ill. 502), 89 Am. Dec., 392, is a leading case upon this question. The city of (738) Peoria graded its streets in such a manner as to cause a stream of water and mud to flow onto the plaintiff's property in times of rain, and also to cause a pond to accumulate upon adjacent property, which, by becoming stagnant, diffused unwholesome vapors over the plaintiff's premises. The city was held liable on the ground that the damages complained of were a taking, within the meaning of the Constitution. It was held that the city had no greater power over its streets than a private individual had over his own land, and that the law of adjacent proprietors was applicable. This is the true rule to be applied in all such cases." Preventing the digging of an unauthorized ditch and obstructing an existing ditch whereby the highway is flooded are essentially different.

Another interesting view is presented by this case: Suppose the plaintiff should sue the county for compensation, and the county should repudiate the act of the overseer as unauthorized, what remedy would he have? This Court has said that he can not sue the county for a tort. Shall it now say that he is indictable if he attempts to prevent a tort? Surely, one of two things must be true — either the overseer has no right to cut the ditch or the county must be held responsible for his act.

For misdirection of the jury by his Honor in the court below, a new trial is ordered.

New trial.


Summaries of

S. v. New

Supreme Court of North Carolina
Jun 1, 1902
41 S.E. 1033 (N.C. 1902)
Case details for

S. v. New

Case Details

Full title:STATE v. NEW

Court:Supreme Court of North Carolina

Date published: Jun 1, 1902

Citations

41 S.E. 1033 (N.C. 1902)
130 N.C. 731