Adams v. Durham & Northern Railroad

Avery, J. after stating the case, pi’oceeded: It is contended for the defendant that, though Fleming’s branch was turned from its natural channel above the track and made to pass under a trestle with the waters of Adams’ branch, the undisputed fact that the work of constructing the trestle was skillfully done and that it afforded ample room for the passage of both streams, relieves the company from liability to the owner of the tract of land on which the waterway is situated for damages caused by overflow, either above or below the trestle, because compensation for such injury to that land as was incident to a proper construction of the road across it, was allowed to the owner in estimating the value of the right-of-way. It is conceded that one of the propositions upon which this contention is founded is, in the abstract, correct, and is supported by abundant authority. Such damage as is due to the erection of a waterway over a running stream at the point of its intersection with the line of a railway is considered, where the work is skillfully done, as included in the cost of the easement or to have passed as an incident to a grant of it; and the fact that it was so constructed as to pass *330 the water, even in time of ordinary freshet, being admitted, neither the owner of the servient tenement, nor the proprietor of a tract above can maintain an action for damage due to placing the structure across the stream. Emry v. Railroad, 102 N. C., 209; 6 Am. & Eng. Enc., p. 552; Proprietors v. Railroad, 10 Cush. (Mass.), 385; Meares v. Wilmington, 9 Ired., 73; Wright v. Wilmington, 92 N. C., 156; Railroad v. Wicker, 74 N. C., 220. The damage directly due to the diversion of a watercourse from its natural channel is not considered to have been included in the estimated cost of the right-of-way, merely because the corporation, acting through its agents, may have found it less expensive to turn one branch into the channel of another, or to divert one from its natural bed, rather than construct two trestles or locate one at the original intersection of the stream with the railway. Whether an easement passed by private sale or condemnation, the estimate of its value is presumed to be made in contemplation of the observance on the part of the corporation of the golden maxim of the law, by so exercising its privilege as to inflict no unnecessary injury on the servient owñer. Lewis on Eminent Domain, §571; Angelí on Watercourses, §97; Ibid, §§ 95,95a; Lillotran v. Smith, 32 N. H., 94; Embry v. Owen, 6 Exc., 369; Pugh v. Wheeler, 2 Dev. & Bat., 50; Walton v. Mills, 86 N. C., 280; Wilhelm v. Burleyson, 106 N. C., 389; Gould on Waters, §§.209, 214, 401, 405; Hasher v. Railroad, 60 Mo., 329; Curtis v. Railroad, 98 Mass., 428; Lawrence v. Railroad, 71 C. L. Repts., 643; Mills on Em. Domain, § 81 (p. 220); Munken v. Railroad, 72 Mo., 514; Railroad v. Wicker, supra. It would seem to be the éstablished rule in America that for any infringement of the plaintiff’s right, as of that to have the two branches to flow in their accustomed channel,' he would, as against a coterminous landowner above him, have the right to recover at least nominal damages if no actual injury were shown (2 Shearman & Red. on Neg., 733; *331 Gould, supra, §§ 401 and 405; Bishop’s C. L., §892); and where the flow of the stream.is changed, or two running streams are united by a corporation holding an easement merely for the purpose of diminishing the cost of construction, and not because such changes are necessary to insure the safety and permanency of the structure built by it, the company must answer for such damages as are caused by divisions made, not to protect the lives and property of its prospective patrons, but to diminish the draught upon its treasury. Lewis on Em. Dom., §§ 61, 62 and 571; Mills on Em. Dom., § 81. If Fleming’s branch was turned away from its original channel and into Adams’ branch merely to save money, and not lives and property, the road-bed might have been completed', possibly at greater cost to the company, but without inflicting the injury from overflow above and below the track, which is complained of. It being admitted, as a general rule, that such injuries to the servient tenement as are necessarily incident to a skillful construction of the road are considered as included in the compensation for .the easement, it is clear that the skill is not to be measured by the cost of the structure alone, but by its completion upon such a location and in such a manner as to provide for the public safety and convenience without unnecessary injury to the land subject to the servitude. When the attempt is made to draw- and define the line of legal .right between two such conflicting claimants, it is essential always to recur to the rule sic utere tuo, ut non alienum loedas, as the touch-stone by which the culpability of conduct is to be determined. The persons who fixed the cost of the easement contemplated the building of the structure with an eye to the safety and convenience of the public, and subject to this controlling purpose, with a proper regard for the rights of the servient as well as dominant owner. The Court erred in submitting the question whether in their opinion there was negligence in the construction (not *332 the location) of the trestle by failure to provide a sufficient room for the passage of the water, and whether, by reason of such negligence, the land above the road-bed was injured, and in making the right of recovery depend solely upon their finding in this respect, as all of the evidence tended to show that the trestle afforded ample room for the passage of the water even in time of ordinary freshets. Morgan v. Railroad, 98 N. C., 247. The instruction was calculated to mislead them. The Judge should have told the jury that by diverting Fleming’s branch from its channel above the railroad, unless it was necessary to do so in order to make the best provision for the safety of passengers and properly to be transported over the road, the defendant company incurred liability for at least nominal damages, and for such actual damage from overflow as was caused to the plaintiff’s land above the railroad or below it, by diverting the branch from its natural course as well as by throwing logs into Adams’ branch, or allowing obstructions to be placed in that portion of the stream covered by the easement. If the true test should be hereafter applied by a jury, they might find a greater, or less sum, to be due than that fixed by their verdict for the land above the track; but since the charge was evidently calculated to mislead, the defendant •has the right to demand a new tiial as to that question. As we understand the facts from a statement that is not very full or clear, and as we gathered them from mutual admissions of counsel on the argument, the Court below also eried in giving the instruction that the jury must not allow any damage for injury done to the plaintiff’s land lying below the railway. This was not an error of which the defendant complained, but, as the case is to be tried again, it is not improper to anticipate a question that must inevitably arise in the Court below on the next trial, and would prob-ab’y have arisen now if plaintiff’s appeal had been perfected. *333 If there was testimony tending to show (as seems to be conceded, and as the map indicated) that the plaintiff’s land below the railroad, and above the point at which Fleming’s branch originally entered into Adams’ branch, was injured by overflow, and that such overflow was caused by turning the water of both into one channel, then the defendant was answerable also for such damage above the point of original intersection of the two streams, and it should have been estimated by the jury. In cases of this kind, when the damage is due to a cause that may be removed, or a nuisance that may be abated, the measure of damage is not the difference in the market value of the land before and after the injury, but is estimated by comparing its productiveness before and after the flooding. Spilman v. Navigation Co., 74 N. C., 675; 16 Am. & Eng. Enc., 984. For the reasons given, we think there was error, and that a new trial should be granted. Error.