Armstrong v. . Spruill

Clare, O. J. This case was before Fall Term, 1921 —Armstrong v. Spruill, 182 N. C., 1. It there appeared from the uncontradicted testimony that the canal drained the lands of all the parties along its line under a prescriptive right, but that the defendant,’ an upper proprietor, finding it had become insufficient, without a proceeding under the statute, had enlarged and deepened it and increased the flow of water upon the plaintiff’s land, and there was a conflict of testimony whether such enlargement had caused damage to the plaintiff. The Court held that it was error not .to have submitted this to the jury. In the present case, witnesses of both plaintiff and defendant testified that the canal was not cut deeper or wider than before, and the plaintiff testified that it was not cut as wide or as deep in 1915 as it was originally. Therefore the former decision has no bearing. *21 One question much debated was whether Mrs. L. C. Spruill had authorized the cleaning out and cutting of the canal, which work was supervised by her husband. Defendant moved for nonsuit upon the ground that the evidence did not sustain the contention that the work was done by her authority; and secondly, that upon the merits there should have been a nonsuit. We do not think it necessary to discuss the first proposition for, upon the evidence, we think the nonsuit should have been granted because no cause of action was shown. The decisions of this and other courts are to the effect that “Where a drainage canal has been established and used as a right by abutting proprietors, in the absence of statutory contract or prescriptive regulations to the contrary, the obligation is upon each of the proprietors to clean out and properly maintain the portion of the canal running through his own land, and ordinarily he has no right to compel another proprietor to do this for him, nor to hold such proprietor for damages for not doing it.” Craft v. Lumber Co., 181 N. C., 31; Lamb v. Lamb, 177 N. C., 150, and cases cited. The uncontroverted evidence here is that this canal was dug more than fifty years ago and was used for that length of time or longer, up to 1915, by the owners of the lands adjoining the canal as a drain-way. The plaintiff owned a part of the Cooper tract, and the evidence is that Cooper drained into this canal and helped to maintain it. After-wards Sawyer purchased a part of the Cooper tract, which is the land that the plaintiff now owns, and drained into this canal and helped to maintain it; that this canal is the only drainway of the California and other farms adjacent to the canal down to the Alligator River; that the owners of these adjacent lands have helped to maintain this canal all these years; that the canal has not been enlarged either in width or depth. The testimony of both the plaintiff and defendant established these facts. It follows that while it was not the duty of the owner of the California Farm to.cut the ditch through the land of the plaintiff, neither was it her duty to cut it on to the Alligator River. The owners of the Cooper land were bound to cut the ditch through their lands according to all the decisions of the Court. Resides, there is the express agreement, 1 September, 1917, of the plaintiff and all the other owners of land adjacent to the canal and draining into it to cut and clean out the canal and to maintain it, each one paying his proportionate part. The court therefore erred in not sustaining the motion of nonsuit, both at the close of the plaintiff’s testimony and at the close of the whole testimony. She was not compelled under that agreement to cut as far as was done, but that she did more than her share ■ constitutes no cause *22 of action against ber estate. Sbe, being now deceased, is represented in tbis action by ber personal representative. Had tbe defendants not ent through ber land as sbe was required to do under tbe joint agreement, sbe would be liable to tbe other parties, but sbe is not responsible for having cut further than ber obligation required nor that sbe did not cut down to tbe Alligator River. Tbe land of tbe plaintiff was a part of tbe Cooper tract. Tbe canal was cut through it. It was divided up into small tracts according to tbe evidence of tbe plaintiff himself, and a part of tbe water from bis land drained into tbis canal as appeared from bis cross-examination, and tbe canal runs through bis lands; therefore, even if be bad cut other ditches and drained part or tbe most of bis land elsewhere, still tbe defendant would not be legally bound to cut tbe ditch through' tbe plaintiff’s land. Craft v. Lumber Co. and Lamb v. Lamb, supra. Tbe plaintiff has given no notice that be would discontinue draining into tbis canal and, in fact, has not discontinued. If be bad desired to relieve himself of this responsibility his remedy was under the statute. From a careful perusal of all the evidence in the record, it clearly appears that tbe lands of tbe plaintiff are low lands; that this canal was cut over two miles many years ago by the owners of these lands; that tbe canal has been maintained regularly as a drain-way and that it is tbe only drain-way, according to tbe testimony and tbe maps, for these lands. Tbe plaintiff was bound under tbe joint contract of September, 191Y, to cut tbe ditch through bis own lands, and if, by failing to do so, tbe water from tbe other proprietors, among them tbe defendant, comes upon his land, he is not entitled to damages. His remedy is fully set out by his Honor, Hoke, J., in a very clear and instructive opinion in Lamb v. Lamb, supra. There was error. Reversed-.