Sykes v. . Sykes

Connor, J. Plaintiff and defendants own adjoining tracts of land, situate in Franklin County; both tracts front on the Louisburg and Nashville highway. They are divided by a road, which plaintiff alleges is a public road, known as the Spring Hope road; this allegation is denied by defendants. They contend that this dividing road, is merely a neighborhood path, located partly on their land and partly on plaintiff’s land. The ditch which plaintiff contends defendants filled up by plowing over same, is on defendants’ side of this road or path. The natural drainage from defendants’ land is toward plaintiff’s land. *38 The court instructed the jury as follows: “Before the plaintiff can recover the court charges you that you must find (1) that this was a public road; (2) that there was a' ditch or furrow on the east side of that public road, and (3) that that ditch was stopped up by defendants. If you shall find from the evidence that this was not a public road, then the plaintiff cannot recover.” Plaintiff excepted to this instruction and assigns same as error. The evidence as to the character of the road was conflicting. We find no error in the instruction. If the ditch was not on a public road, but on defendants’ land, defendants had the right to fill it, and are not liable to plaintiff for damages, if any, caused by filling the ditch. Defendants, as the upper proprietors, had the right to accelerate and even increase the flow of water from their land to the land of plaintiff, the lower proprietor. Winchester v. Byers, 196 N. C., 383. There was no evidence that the water was diverted from its natural course. Nor was there evidence tending to show that the ditch had been constructed and maintained by mutual agreement as part of a general system of drainage for both plaintiff’s and defendants’ lands. If the ditch was on defendants’ land, and not on a public road, defendants’ act in filling the ditch was not a wrongful act; if damage resulted to plaintiff’s land, defendants are not liable. Other assignments of error have been duly considered; they cannot be sustained. The judgment is affirmed. There is No error.