Briscoe v. . Parker

Clark, 0. J. The principle settled by our decisions is, that in the interest of health .and good husbandry better drainage is to be encouraged. Hence, an upper proprietor can accelerate and even increase the flow of water from his land, but due regard for the rights of the lower proprietor forbids that the flow of water should be diverted to his detriment. Hocutt v. Railroad, 124 N. C., 214; Mizell v. McGowan, 125 N. C., 439; s. c., 129 N. C., 93; Lassiter v. Railroad, 126 N. C., 509; Rice v. Railroad, 130 N. C., 376; Mullen v. Canal Co., ibid., 502. There was here evidence tending to show that the water collected by plaintiff’s ditches and carried by them through his own land and that of the next lower proprietor there ceased to be carried farther to a natural water way, but were allowed to ooze through and water-sog the plaintiff’s land, to his detriment. There was conflicting evidence, but the jury so found the fact. If so, the water put upon the plaintiff’s land was not in the due and orderly course of nature from the increase and acceleration of the flow from the better drainage of his farm by the upper proprietor, but was, in fact, a diversion of the water upon the plaintiff’s land, to its detriment. “The defendant had no right to collect surface water * * * into- a ditch not adequate to receive it, and thus flood and injure the land of another.” Staton v. Railroad, 109 N. C., 341; Porter v. Durham, 74 N. C., 767; Jenkins v. Railroad, 110 N. C., 444, 447. This is not the case of draining into a natural water way, increasing its flow, which the defendant had a right to do. Mizell v. McGowan, 120 N. C., 134. For such injury the plaintiff could bring this action at his election. Mizell v. McGowan, 120 N. C., 137. He is not restricted to the remedy prescribed by Eevisal, sec. 3983, et *18 seq. Indeed, that proceeding is one which the defendant, the upper tenant, might well have resorted to. The Court excluded a paper offered in evidence by the plaintiff. The plaintiff’s counsel, notwithstanding, upon permission of the Court, reopened the argument, and in the course of it stated the contents of the paper. The Court adhered to its ruling and told the jury not to consider the contents of the paper nor the statement of counsel in regard thereto. The jury must have understood so plain an instruction, and, furthermore, that the paper having been excluded as evidence and not testified to by any one, they could not consider it. If a jury is not possessed of this much intelligence, it is not a proper part of a trial in court. No Error.