Parks v. Railroad

*292 CoNNOR, J., after stating the case: The plaintiff’s land forms a water-shed to the Yadkin River. Prior to the construction of the railroad the water found its way down the hillside, spreading over the bottom-land and either percolated through the soil or passed over the surface into the river. It was necessary in the construction of the railroad to make a road-bed of the usual width, which operated as a barrier, or dam, to the natural flow of the water. Coming down the hill, unless carried off by side ditches, the water percolated through the road-bed, endangering the solidity of the track. To avoid this danger, the company cut a side ditch, into which the water flowed, finding its way to the lowest point along the north side of the road-bed. At this point it ponded, rendering it necessary to provide an outlet to the river. For this purpose the company, at the time of constructing the road, put in the road-bed, under the track, a wooden trunk or drain. This was done some sixteen years ago. During the year 1899, as alleged in the complaint, this drain was enlarged and a pipe inserted through the road-bed. This pipe was, we assume, no longer than the width of the road-bed át its base, thus throwing the Avater from its mouth onto plaintiff’s loAver lands. It does not appear whether the wash was on the right-of-Avay or beyond it. We assume that it was on the plaintiff’s land over which defendant had acquired an easement, by virtue of the provision of its charter, after two years from the construction of the road. The water passing through the culvert was surface, or such as fell, when it rained, upon the water-shed above the track. There is no evidence that the company diverted any water from a natural water-course. It is conceded that the defendant has not increased the flow of surface Avater, that is, that no more surface water went through the culvert than formerly passed over plaintiff’s land, either before the road was built' or with the finder-drain. The plaintiff does not complain of the construction of the road-bed *293 and track through, his land or the manner in which the side ditches are constructed. It is well settled that for the entry upon and taking his land “for railroad purposes, he should have sued within two years from the .construction, and that by his failure to do so it shall be presumed that the land upon which the road may be constructed, together with one hundred feet on each side of the center of the road, has been granted to the company by the owner, and it acquired a good right and title to the same, sq long as the land may be used only for the purpose of the road, and no longer.” Barker v. Railroad, 137 N. C., 214; McCaskill's case, 94 N. C., 746; Railroad v. Olive, 142 N. C., 257. The defendant insists that the right, with the accompanying easements, thus acquired by the company are the same in all respects as if the land had been condemned or granted for railroad purposes. An examination of the decisions of this Court does not show that this question has been heretofore directly presented or decided. In the cases involving the rights and duties of railroad companies, in respect to their rights-of-way, no distinction has been suggested or made between the several methods of acquisition. In McOaskiWs case, which was the first of a series found in our Reports, the right was acquired under the statutory presumption arising after two years’ occupation, and the right was treated as coextensive with a condemnation or grant. In Brinkley v. Railroad, 135 N. C., 654, the question was presented whether, upon a right acquired in this way, the company could, without being liable to the owner, change the grade and relocate its track on the right-of-way. Montgomery, J., discussing the question, cited Blue v. Railroad, 117 N. C., 644; Railroad v. Sturgeon, 120 N. C., 225, and Shields v. Railroad, 129 N. C., 1, and says: “In these cases it was decided that railroad companies, if they should need the whole of the right-of-way *294 for railroad purposes, bad tbe right to the use of the whole. Some of these uses were mentioned in the decisions, viz., roadbed and drains, sidetracks and houses for their employees, warehouses, etc.” The Court held that the company was not liable for making a change in the grade, etc. In Sturgeon's case, supra, it is said: “What reasonable meaning can be attached to the words “for the purposes of the company,” except that the land should be used for such purposes as are conducive and necessary to the conducting of the business of the company, that is, of safely and rapidly transporting and conveying passengers and freight over its railroads ? • That is the whole business of the company. They need land for no other purpose than to properly construct their road-beds and drain them, build sidetracks, etc.” Fleming v. Railroad Co., 115 N. C., 616. It would seem, in the light of what has been said by this Court, as well as upon the reason of the thing, that when the land-owner acquiesces for two years after the construction of the road over his land, with full knowledge of his legal rights and of the extent of the rights accruing to the company by such occupancy, he assents to the acquisition of the easement in the same manner and to the same extent as if the land had been condemned. We would' find it exceedingly difficult, if not impracticable, to draw any line of distinction between the rights acquired by the different methods prescribed by the law. As we held in Hodges v. Telegraph Co., 133 N. C., 225, for any additional burden not necessary for “railroad purposes” placed upon the land covered by the right-of-way, the owner is entitled to compensation. "What rights pass to the company in regard to disposing of surface water in the drainage of its road-bed, or what elements of damage are considered in fixing compensation when the land is condemned or surrendered by the owner by acquiescence in regard to surface water? This question was first *295 considered and decided by this Court in Railroad v. Wicker, 74 N. C., 220, in which Rodman, J., adopting the rule laid down by the Supreme Court of Massachusetts, said: “A distinction is taken between cases in which the ponding is caused by the obstruction of a natural or artificial drainway, and when it is caused by the alteration of the previous grade or-slope of the land, by which the surface water on defendant’s land is prevented from running off as it was accustomed to do. In the first of these cases it is held that the resulting damage should not be estimated in measuring the compensation to' the land-owner; but that in the second it should be.” This case has been uniformly approved and followed by this Court. The only difficulty consists in the application of the rule. In that case the question discussed was ponding surface water. In Willey v. Railroad, 98, N. C., 263, Smith, C. J., said: “In condemnation, everything necessary and incident to the original making and subsequent operating the road must be intended to have passed as against the owner of the condemned land.” In Bell v. Railroad, 101 N. C., 21, Davis, J., says: “The water drained by the defendant’s ditches was all surface water, except occasionally, after heavy rains, the water from the Eismal Swamp would spread over the surface of the ditch,” citing Wicker s case, supra, as establishing the principle that draining off surface water was one of the legal incidental damages” which is assessed in condemnation proceedings. Adams v. Railroad, 110 N. C., 325; Fleming v. Railroad, supra. In Mullen v. Canal Co., 130 N. C., 496, Douglas, J., says: “In the present case the plaintiff occupies the singular position of being the upper and lower land-owner by virtue of the same piece of land.” After describing the way in which the plaintiff was damaged, he says: “This is diversion, and it is now well settled that neither a corporation nor an individual can divert water'from its natural course.” In Mizell v. McGowan, 120 N. C., 134, *296 Faircloth, G. J., said: “The defendants are permitted not to divert, but to drain their lands, having due regard to their neighbor, provided they do not more than concentrate the water and cause it to flow more rapidly and in greater volume down the natural stream through or by the lands of the plain•tiff. This license must be conceded with caution and prudence.” Par ker v. Railroad, 123 N. C., 71. We conclude, therefore, that the defendant, by entering upon and occupying plaintiff’s land for railroad purposes, acquired, at the end of two years from the construction of the road, an easement permitting it to use one hundred feet from the center on either side for railroad purposes, which includes the right to construct the road-bed and to carry from it by the use of drains, carefully constructed, the surface water accumulating on the right-of-way. In exercising this right, care must be taken to avoid, by the use of all reasonable means, all unnecessary damage to the lands over which it has a right-of-way. The land-owner must have known, when he acquiesced in the acquisition of the easement by refraining from suit, 'that the company would be compelled to protect its roadbed and track from surface water. He knew the “lay” of his land and what effect the construction of the road would have upon the flow of the water and the means necessary to prevent ponding and injuring the upper land and the road-bed. He made no complaint for sixteen years, during which he says there was a wooden trunk carrying the surface water in the same quantity and through the same land as the pipe does. He says, and this is self-evident, that the new drain does not increase the flow of the water, and he further says that the drain is about the lowest point and is where the water would naturally flow. The contention of the plaintiff is well stated in the brief of his counsel, saying: “Plaintiff alleges that the defendant should have carried the water, collected in its side ditches, *297 to the branch on the west, or the ditch on the east or trunked, it to the Yadkin Eiver on the south, about one hundred yards distant from the railroad. And,, in not doing this, the construction and drainage of the road was negligently and improperly done.” Neither of these contentions were submitted to the jury. They were instructed that if the water was concentrated by flowing down the side ditches at the trunk and permitted to go through the trunk onto plaintiff’s land, defendant was liable. This view eliminated the question of negligence and withdrew from the jury the fact that defendant had acquired an easement to drain the surface water by carrying it through the road-bed, provided there was no other reasonably convenient way to dispose of it and that there was no negligence in the construction of the drain. It is not clear from the testimony of plaintiff whether defendant could not, by the exercise of reasonable care and without unreasonable expense, have carried the water to the branch and thereby disposed of it without injury to plaintiff. Tie says in his direct evidence that the branch was lower than the point at which the trunk was placed. In his cross-examination he says otherwise. We think that the true test of defendant’s 'liability is whether the means adopted were reasonable, or such as a prudent man so situated, having regard to his own and his neighbor’s rights and property, would have taken to dispose of the surface water. It may be that, if railroad companies were required to condemn or at least institute proceedings for that purpose, before constructing their roads, etc., and have their rights anti duties settled, many of the difficult and perplexing questions which have arisen would have been avoided. The policy of the State, when the construction of railroads first attracted attention, was otherwise. Conditions have changed, lands have increased in value and rights deemed of little value when the *298 roads were built have become of importance. Tbe courts, while endeavoring to have tbe law work out substantial justice, cannot change their decisions to meet these conditions. The defendant is entitled to drain the surface water from its road-bed, subject to the limitation that it does so without negligence and unnecessary injury to the lands of plaintiff. Of course, what we have said has no application to lands over which rights-of-way have not been acquired. These questions have been discussed and settled in other cases. This conclusion results in a new trial. It may be proper to say that the real questions in controversy could be more clearly presented by a reformation of the pleadings. It does not very clearly appear what the plaintiff’s cause of action is or the damage which he claims. The proper issues in such cases may be found in Brown v. Power Co. 140 N. C., 334, and Candler v. Electric Co., 135 N. C., 12. In this way the plaintiff recovers for damage up to the time of the trial, not exceeding five years, and for the permanent easement which is acquired by the payment of the judgment. The issues thus framed would eliminate the exceptions to his Honor’s rulings upon the question of damages. New Trial.