Howell v. Norfolk & Carolina Railroad

Furches, J. This is an action for damages to plaintiffs’ land by the overflow of water caused by the negligent and *26 unskillful manner in wbicb tbe defendant constructed its road. Upon tbe close of tbe plaintiffs’ evidence, tbe Court intimated tbe opinion that plaintiff's could not recover, and plaintiffs submitted to a judgment of nonsuit and appealed. There are no grounds set out in tbe statement of tbe case why tbe Court was of tbe opinion that plaintiffs could not recover. And we would bave been at a loss to know upon wbat grounds tbe opinion of tbe Court was founded, if they bad not been stated by defendants’ counsel in bis brief. We learn from tbis, that there were two grounds that appeared to bis Honor as defects, that influenced him to come to tbe judgment be did: First, that plaintiffs failed to allege and prove that they were tbe owners of tbe land alleged to be damaged, and secondly, that it appeared to bis Honor that plaintiffs were tenants in common ¿with other persons, and that tbis was not alleged in tbe complaint. It is not necessary that we should consider whether possession would not entitle tbe plaintiffs to at least nominal damages; nor is it necessary that we should consider whether one tenant in common could not maintain such an action, wbicb is trespass or in tbe nature of trespass, as neither of these questions is presented by tbe record. Nor is it necessary that we should decide that any proposition, necessary to be proved by plaintiffs, was established. It is sufficient in such cases of nonsuit, where it is our duty, to take every proposition, when there is evidence tending to prove it, as proved. Tbe plaintiffs allege their ownership in fee-simple. There was evidence tending to prove that one Knight owned the land before defendant constructed its road, in 1889; that he died, and it descended to bis beirs-at-law, six in number; that it bad been divided between them under proceedings in *27 Court; that embankments four feet high had been made along the stream fifty years ago to prevent the overflow of water on plaintiffs’ land, and that these embankments had been constantly kept up for fifty years; that the lands mentioned in the complaint were two of the shares of the Knight lands, one of them falling to the feme plaintiff in the division, and the other share she acquired by purchase from one of the other heirs of said Knight; that there was evidence tending to prove the negligent construction of the road by the defendant, the damage caused thereby, and the amount of said damage. This being so, we can see no ground upon which the ruling of the Court below can be sustained, and there must be a new trial. New trial.