There was no duty upon the defendant, in order to minimize his damages and realize benefits from the improvement, to trespass upon public and private property by digging ditches or underground conduits. Montgomery B. T. Co. v. Kelly, 202 Ala. 660, 81 So. 612; 1 Sedgwick on Damage, § 225, p. 334; 1 Sutherland on Damages, § 90, p. 262; Cumberland Gro. Co. v. Baugh, 151 Ky. 641, 152 S.W. 565, 43 L.R.A. (N.S.) 1040, Ann. Cas. 1915A, 131; Waters v. Kear, 168 N.C. 246, 84 S.E. 292; Chesapeake O. R. Co. v. Blankenship, 158 Ky. 270, 164 S.W. 943, 947; Madisonville, H. E. R. Co. v. Cates, 138 Ky. 257, 127 S.W. 988, 137 Am. St. Rep. 379; Roberts v. Baldwin, 155 N.C. 276, 71 S.E. 319, 322. The rule that one damaged should avert the consequences has no application where wrongdoer has the opportunity to remedy the wrong.
This case is approved and followed by the Supreme Court of Nevada in Shields v. Orr Extension Ditch Co., supra. In Waters v. Kear, 168 N.C. 246, 84 S.E. 292, the syllabus is: "The owner of land on which surface waters were wrongfully diverted by defendant is not required by law to permit defendant to dig a ditch through the land, or to dig the ditch himself in order to lessen the damages caused by the wrongful diversion."
The general principle, embodied in the second prayer for instruction, is fully recognized, that the injured party should do what reasonable care and business prudence requires to reduce the loss ( Yowmans v. Hendersonville, 175 N.C. 578), but it has no application where the wrongdoer has the opportunity to remedy the wrong, and avoid damage, and when it would require the expenditure of money by the injured party. Roberts v. Baldwin, 155 N.C. 281; Waters v. Kear, 168 N.C. 246; Cardwell v. R. R., 171 N.C. 366. The employees of the defendant could have repaired the pipe at the time they made the hole in it, or afterwards, and it was their duty to do so, and the city cannot escape liability for damages caused by its negligence because of the failure of the plaintiff to expend money to do something it ought and could have done.
This charge is correct. Roberts v. Baldwin, 155 N.C. 281; Waters v. Kear, 168 N.C. 246; Barcliff v. R. R., ib., 270; Cardwell v. R. R., 171 N.C. 367. In the latter case the Court said that the defendant could (75) not rely upon the defense that the plaintiff should have reduced his damages by cutting drainage ditches, for the injured proprietor is not required to incur such expense in order to avoid damages when the defendant has wrongfully diverted the surface water from its natural flow to his damage.
But this principle applies only in cases of breach of contract where the party who has sustained damage thereby can by proper steps reduce the damages. It does not apply to cases of tort. Waters v. Kear, 168 N.C. 246; Barcliff v. R. R., supra. The lower proprietor is not required to avoid damages to his land by digging ditches at his own expense to carry off the surface water wrongfully diverted from its natural flow by the upper proprietor to his damage.