Wilhelm v. . Burleyson

Avery, J. after stating the facts: An objection to the introduction of a deed, offered as evidence, will not be-sustained as a rule, unless the probate is defective and the reading of it is resisted on that ground. Vickers v. Leigh, 104 N. C., 248. After its admission the parties can raise any question that may be pertinent, by prayers for instruction to the jury in reference to its character or weight as evidence of title. It is true that the plaintiff seems to have offered certain records,-so soon as the objection was made. But the defendant did not request the Court so far as the record informs us to tell the jury that the deed should be considered only as color of title, or that it was not to be considered at all. We find no copy of the deed in the record, nor does it appear what instruction was asked or given to the jury upon the subject of title. There was no exception that put the Judge below on notice to send up the deed, or so much of the charge as related to title, and it would be manifestly unjust, as well as in violation of established rules, to follow counsel in the line of discussion adopted and decide questions raised for the first time in this Court. “It, became material to locate the old channel of the creek or branch meandering through the disputed lands for the purpose of establishing boundaries.” Such is the language of the statement of the case on appeal. But it appears from the testimony and exhibits that, prior to the year 1858, and back to the year 1840, the land on both sides of the creek belonged to Andrew Carriker. David McEachern con-ve3ed to Andrew Carriker on the 28th of February, 1840. There was a partition of the lands of Andrew Carriker in 1858, and it is admitted that the plaintiff is the owner of *387 lot No. 1 and the defendant of lot No. 2, as set apart to his heirs in that proceeding. The two lots mentioned call for running with the creek sixty-four poles from a certain sycamore to a white oak. The first cause of action depends upon the location of this dividing line between the two tracts. It is clear that the bed of the creek, as it ran in the year 1858, was the boundary line at the time of the division of the land. The "whole of the stream between the two corners mentioned had belonged to Carriker, the common source of title, before the partition. Since the creek was first constituted a dividing line, it may be that its course between two points has changed slowly, and by imperceptible degrees, so as to give one or the other of the riparian proprietors the benefit of accretions, or there may have been a sudden and very apparent change or no alteration in the channel at all since the year 1858, in either of which contingencies last mentioned, the original dividing line "would remain where it was first located. Halsey v. McCormick, 18 N. Y., 147; Mulry v. Norton, 100 N. Y., 424; County of St. Clair v. Livingston, 23 Wall., 46; The Mayor of New Orleans v. The United States, 10 Peters, 662; Spigener v. Cooner, 64 Am. Dec., 755; Gould on Waters, §155; Gernish v. Clough, 48 N. H., 9 (97 Am. Dec., 561); Lynch v. Allen, 4 Dev. & Bat., 62. It was clearly incompetent to admit testimony tending to show where the creek ran in the year 1845, when Andrew Carriker owned the land on both sides and it was not a boundary. Jones v. Johnston, 18 Howard, 150. It was first made a dividing line between two shares in the allotment of the lands of Carriker in 1858, and it was' material only to know "where the bed of the creek then ran, and if any changes had since occurred, wdien and how they were made, whether slowly and imperceptibly or suddenly and sensibly, whether brought about by natural or artificial agencies. ' Andrew Carriker might have diverted the channel of *388 the-creek on his own land, so far as we can tell, between the year 1845 and his death, just prior to 1858, or there may have been a very considerable change in its course, produced by natural causes between the year 1845 and the time when it was adopted' as a dividing line by the commissioners appointed to make the partition. Proof of the location of the stream in 1845 was not competent evidence to show where it ran in 1858, when it first became a boundary line. Lynch v. Allen, supra. It is a matter of common observation, that the channels of branches and small streams (and this is called in the statement a branch or small creek) are easily and frequently changed, and cannot be considered permanent landmarks. Hurley v. Morgan, 1 Dev. & Bat., 425. We have no information from which we' can form an accurate opinion as to the exact size of the stream. The testimony was calculated to mislead the jury in determining the location of the dividing line, and there must be a new trial as to the first and second issues. The third cause of action is predicated upon the concession that the defendant was the owner of the land upon which he built the wall, but constructed it so that he damaged the plaintiff by unlawfully causing an overflow of the latter’s land. The defendant requested the Court to instruct the jury, among other things, as follows: “2. If the jury believe that the defendant only erected a dam of sufficient size to protect his own lands from the ill effects of the dam which was erected by Wilhelm on the south side of the creek, the plaintiff' is uot entitled to a verdict.” The Court gave the second instruction, modified, as follows: " “While it is true that a riparian owner may erect bulwarks to protect his property from injury by the stream, yet he can only do so when, by the exercise of reasonable care, it can be done without injury to others.” *389 There was error in adding the qualifying clause to the instruction asked. It is true, as a general rule, that a riparian proprietor of land is restricted in the management of his property by the maxim, “ Sic utere tuo ut alienum non laedas,” and cannot, therefore, take the initiative and construct a dam on a stream that will cause the water to overflow and injure the land of his neighbor, that may lie opposite or above his own premises, either when the water is at its usual height or in an ordinary freshet, or that so obstructs its flow as to prevent the land of the other riparian owner from being properly drained. Pugh v. Wheeler, 2 Dev. & Bat., 50; Johnstone v. Roane, 3 Jones, 523; Burnett v. Nicholson, 86 N. C., 99; Cagle v. Parker, 97 N. C., 271. But it seems that in this case the plaintiff first-constructed a dam on the south side of the creek, and the defendant subsequently built one on the north side lower down. The defendant contended that he was forced to put up his dam to protect his land from overflow caused by the erection of that above by plaintiff, and offered evidence to sustain his contention, and to show that it protected his own, while it did not cause injury to the plaintiff’s land. On the other hand, the plaintiff rested his demand for damage upon the evidence tending to show that the defendant’s dam caused the water to “ eddy," and “ that much more water in an ordinary freshet would thereby overflow ” the former’s lands. We think that the Court erred in refusing to give the instruction asked, and numbered 2, either in words or substance, and without the misleading addition appended to it. If the defendant’s evidence was sufficient to satisfy the jury that the plaintiff first built a wall on his side of the creek, and thereby caused the water to overflow the defendant’s land on the other side, and lower down, the defendant had a right to build a dam on the north bank to stop the overflow brought about in that way, and if, in effecting that object, it became necessary to obstruct the flow'of water in *390 the creek, and cause it to “ eddy” so as in freshets to flood more of plaintiff’s land than had previously been covered in freshets, the defendant was not answerable in damages for such additional overflow". Avery v. The Empire Woolen Co., 82 N. Y., 582; Nield v. L. & N. W. R. R. Co., 10 Tan. Rep., 4; Gould on Waters, § 159. If one riparian owner divert the water by a structure on his own bank, and drive it into the field of his neighbor on the opposite side, so as to force the latter to erect a wall to stop the water-break, the former cannot maintain an action for damages if the wall put up for the protection of the latter came the water to “eddy,” or,in time of freshets, to overflow another part of the former’s land. There is a want of clearness — indeed, some confusion — in the discussion that we find in the authorities of the liability of riparian proprietors incurred in erecting levees on their own land and on the bank of a stream. It may be that distinctions will hereafter be drawn between the rights and liabilities of the owner, when the structure is in the nature of a levee intended for the protection of his own fields, and those of one who erects a wall, extending wholly or partially across the stream, so as to obstruct its natural flow, perceptibly, even when it is not sw'ollen. Under the instruction given by the Court, though the jury might have thought Burleyson’s dam absolutely necessary to protect his land against the overflow produced by the previous building by Wilhelm of one on the opposite bank of the creek, they were, nevertheless, bound to find the issue in favor of the plaintiff if they believed from the evidence that Burleyson’s dam caused the water to break over at another point and flood Wilhelm’s land. There was error also in the instruction given, for which the verdict upon the issues raised by the pleadings as to the third-cause of action should have been set aside, and there must be a new trial as to all of the issues. Error. New trial.