Clark v. Patapsco Guano Co.

*71 Walker, J., after stating the case: There are only two exceptions discussed in the appellant’s brief, ,and those not mentioned are to be taken as having been abandoned under Rule 40 of this Court. 140 N. C., 666. While we are not required to consider them, they have been examined and found to be without merit. The Court below need not submit issues in any particular form. If they are framed in -such a way as to present the material matters in dispute and so as to enable each of the parties to have the full benefit of his contention before the jury and a fair chance to develop his case, and, if when answered, the issues are sufficient to determine the rights of the parties and to support the judgment, the requirement of the statate is fully met. Hatcher v. Dabbs, 133 N. C., 239; Falkner v. Pilcher, 137 N. C., 449; Jackson v. Tel. Co., 139 N. C., 347. This case is much like the one last cited in principle. Here, as in that case, the defendant, by proper requests for instructions, could have had the benefit of all the defenses which are covered by the issues it tendered, and indeed the charge of the Court presented the case to the jury, under the issues submitted, in every possible aspect, except as to the settlement with the plaintiff, and this was not pleaded. That matter was, therefore, not properly before the Court, as it was not made an issuable fact by the pleadings. The question of easement was submitted to the jury under the second issue with full and correct instructions as to what would constitute an easement and with proper reference to the evidence relating thereto. The jury were directed to answer the second issue “No” if they found that no easement to maintain the dam existed. They answered the issue “Yes,” thereby finding that there was no easement. We do not think the defendant was in any sense prejudiced by this action of the Court. Cowles v. Lovin, 135 N. C., at p. 488; Deaver v. Deaver, 137 N. C., 246. If *72 tke defendant succeeded in showing that the easement existed at any time, there was evidence of non-user for as much as twenty years (Crump v. Mims, 64 N. C., 767), and whether there had in fact been such disuse was a question for the jury. They gave their verdict on this point against the defendant. This disposes of the questions of easement and settlement. The question raised by the defendant’s first issue was certainly embraced by the second issue submitted by the Court. Indeed, the latter more clearly and definitely presented the precise matter in controversy, and was therefore the more preferable of the two, as will hereafter appear. The two questions reserved, under the Rule, in the defendant’s brief, and to which the argument before us was mainly addressed, relate, first, to the competency of the plaintiff’s testimony as to the several breaks in his dam after the defendant’s cross-dam was constructed, and, second, to the liability of the defendant for having obstructed the flood-channel of the river on his own land by his cross-dam and thereby diverting the water to the plaintiff’s dam and causing the same to break and his lands to be flooded. As to the relevancy of the evidence admitted by the Court, the ruling, we think, was free from error. The plaintiff testified that before the cross-dam was erected the overflow or flood-water of the river was accustomed to pass down the depression at the foot of his dam without doing any injury thereto, and that his flam was broken by the ponding of the water back against it, which was caused by the obstruction of the defendant’s cross-dam to its natural flow. He further stated that his dam had never been broken by the water before the erection of the cross-dam, but that after its erection, it had broken three, times during freshets, on account of the ponding of the water. There was. no objection when *73 he testified to the first break in bis dam in May, 1901. I'Ve do not see wby the evidence as to all the breaks was not relevant to the issue. If the dam bad not been injured before the cross-dam, was erected and the water was ponded back, and the plaintiff’s dam was broken several times after it was erected, this would seem to indicate a causal connection between the erection of the dam and the injury wbicb followed. There was the positive evidence of the plaintiff as to the cause of the first break in the dam, namely, the freshet and the cross-dam; and, if necessary, this should be considered in passing upon the testimony to wbicb objection was taken. If by relevancy is meant the logical relation between the proposed evidence and the fact to be established, the testimony was admissible when tested by this definition. It is not a case where conditions are required to be the same, or at least similar, as where a comparison between two things is made to ascertain if they have the capacity to produce the same effect, as in Rice v. Railroad, 130 N. C., 375, and Bullock v. Canal Co., 132 N. C., 179; nor is the question like that raised in Warren v. Makely, 85 N. C., 12, and Bruner v. Threadgill, 88 N. C., 361, where it was attempted to show the value of one tract of land by comparing it with that of an adjoining tract. . Our case is more like that of Johnson v. Railroad, 140 N. C., 581, and the class of cases to wbicb it belongs, in each of wbicb the plaintiff, in order to show that sparks from a certain engine bad set bis property afire, was permitted to show that the engine bad emitted sparks shortly before or after the fire. Knott v. Railroad, 142 N. C., 238. In Aycock v. Railroad, 89 N. C., 321, the fact that a train bad just passed was held to be presumptive evidence that it bad caused the fire, wbicb was discovered near its track. Under the circumstances of this ease there was an open and visible connection between *74 the obstruction of the water by the cross-dam and the subsequent breaking of the plaintiff’s dam. The law does not require a necessary connection, which would practically exclude all presumptive evidence, but such as js reasonable, and not latent and conjectural. Bottoms v. Kenl, 48 N. C., 154; Johnson v. Railroad, supra. The evidence which was admitted fulfils that requirement. We do not hold that this evidence is sufficient of itself to establish the fact of injury to the plaintiff’s dam, but that the breaking of his dam three times, under all the circumstances to which he testifies, is fit to be considered, by the jury, in connection with the other facts, upon the question as to whether defendant’s dam caused the alleged injury. It is more than conjectural evidence. This brings us to the consideration of the principal question in the case: Could the defendant legally obstruct what is known as the flood-channel of the river by erecting a dam across it and thereby force the water back upon the plaintiff’s dam to his injury, as already described ? We think it is thoroughly well settled that it cannot, but is liable for the damages which resulted proximately from its wrongful act. ‘‘'Every stream flowing through a country subject to a changeable climate must have periods of high and low water. And it must have not only its ordinary channel, which carries the water at ordinary times, but it must have, also, its flood-channel, to accommodate the water when additional quantities find their way into the stream. The flood-channel of the stream is as much a natural part of it as the ordinary channel. It is provided by nature and it is necessary to' the safe discharge of the (increased) volume of water. With this flood-channel no one is permitted to interfere to the injury of other riparian owners.” 3 Earnham on Waters, secs. 879 and 880. It is further said, by the same author, that *75 tbe courts are very nearly agreed that the flood-channel nrast be considered as a part of the stream, ,and no structures or obstruction of any kind can be placed in its bed which will have a tendency to dam the waters back upon the property of another riparian proprietor. The depression or drain which is mentioned in the evidence is a high-water channel of the kind described. It is auxiliary to the mam channel, relieving it when the water is high and the swollen stream overflows its banks, the low places on the river acting as natural safety-valves in times of freshets. These depressions or channels being provided by nature for the safe discharge of the large volume of water when the bed of the stream becomes incapable of retaining it, the course which the floodwater is in the habit of taking through them cannot be changed or obstructed to the injury of adjoining private land-owners. Farnham on Waters, sec. 880. The wrong committed in blocking such a channel is of the same character as that of one who closes a natural drain-way on his own land and thereby causes the land of an upper proprietor to be flooded by the backwater. The principle governing this case has frequently been recognized and applied by this Court. In Overton v. Sawyer, 46 N. C., 308, it was held that without reference to the plaintiff’s acquisition of an easement by presumption, the defendant had a right to have the water allowed to pass off his land through a natural drain, and when the plaintiff, by means of an embankment across the drain, obstructed the flow of the water and thus interfered with the rights of the defendant, the latter had a cause of action against him for the resulting injury to his property. So in Pugh v. Wheeler, 19 N. C., 50, the Court decided that ponding water back upon another’s laud by any act which impedes its natural flow is a clear and direct invasion of the proprietary interest *76 in the land itself and is an actionable wrong, unless protected by a grant of the right so to do or by an easement in some other way acquired. It was asserted in Porter v. Durham, 74 N. C., 767, as being an elementary principle, which is founded on reason and equity, and common both to the civil . and common law, that the owner of land cannot raise any barrier or dyke, even for the better enjoyment of his own property, so as to obstruct the natural drainage of another’s land and thus intercept and throw back the water upon it. “An owner may not use his property absolutely as he pleases. His dominion is limited by the maxim, Sic utere tuo ut alieimm non laedas.” Numerous cases to the same effect may be cited. Shaw v. Etheridge, 48 N. C., 300; Hair v. Downing, 96 N. C., 172; Wilhelm v. Burleyson, 106 N. C., 381; Staton v. Railroad, 111 N. C., 278; Rice v. Railroad, 130 N. C., 375; Mizell v. McGowan, 125 N. C., 439. The principle, in its application to flood-waters, is clearly stated in Jones on Easements,- sec. 729, where it is said generally that water, which in times of freshet overflows the bank of ,a stream and is accustomed to flow over adjacent lowlands in a defined stream, is to be treated as a water-course, rather than as surface-water, and a riparian owner is not allowed to stop the flow by erecting barriers to the injury of another. See, also, 13 Am. and Eng. Enc. (2 Ed.), 687; Jones v. Railroad, 45 S. E., 188. In discussing a somewhat similar question in Staton v. Railroad, 109 N. C., 337, the Court, by Merrimon, C. J., said: “A party must submit to the natural disadvantages and inconveniences incident to his land, unless he can in some lawful way avoid and rid himself of them. But he has no right, as a general rule, to rid himself of them by shifting them by artificial means to the land of another, when naturally and in the order of things they would not go upon such land or affect it adversely.” To *77 the same purport is the language of the Court in Mizell v. McGowan, 120 N. C., 134. “The surface of the earth is naturally uneven, with inequality of elevation. The upper and lower holdings are taken with a knowledge of these natural conditions and the privilege or easement of the upper tenant to carry off the surface-water in its natural course under reasonable limitations, and the subserviency of the lower tenant to this easement, are the natural incidents to the ownership of the soil. The lower surface is doomed by nature to bear the servitude to the superior, and must receive the water that falls on and flows from the latter. The ser-vient tenant cannot complain of this, because aqua currit et debet currere ut solebatIf a riparian owner can raise the banks of a stream so as to confine the flood-water and prevent its overflowing his land, without occasioning any injury to the property of others, he may do so, but he must suffer the consequences of any failure in the attempt. Jones on Easements, sec. 729. He cannot set up a barrier to the flow of the water in its natural or accustomed channel if it will result in injury to his neighbors. This Court has said in Staton v. Railroad, 111 N. C., 278, that, in adapting his property to any use, the land-owner is subject to the law of adjoining proprietors and to the maxim, Sic utere tuo ut alienum non laedas. If in such adaptation the adjacent owner’s rights of property are violated, he is entitled to compensation, not so much on the ground of a want of skill or diligence in constructing the work of improvement, as for the reason that by injuring his neighbor’s land he has to that extent invaded his right of property. It is the wrong done, and not the manner of doing it, that primarily determines the liability. Applying these principles to the facts of this case, we find that the Court fully and correctly instructed the jury as to the liability of the defendant for obstructing *78 tbe flood-channel of the river and ponding tbe water back upon tbe plaintiff’s lands, leaving it to tbem to find tbe facts upon which such liability depended. He also charged tbe jury upon tbe question of surface-water as favorably to the defendant as tbe law permitted. Tbe jury found that there was a flood-channel which bad been wrongfully obstructed to tbe plaintiff’s damage, and this finding was made under instructions of tbe Court based upon evidence and free from any error we have been able to discover. Tbe fact that other causes may have concurred with the defendant’s wrong in producing the injury does not relieve it of liability; for tort-feasors contributing to tbe same injury are jointly and severally liable. Dillon v. Raleigh, 124 N. C., 184. “When tbe injury proceeds from two causes operating together, tbe party putting in motion one of them is liable tbe same as though it was tbe sole cause. This is one form of a universal principle in tbe law, that be who contributes to á wrong, either civil or criminal, is answerable as doer. And it is immaterial to this proposition whether that to which he contributes is the violation of a responsible person, or of an 'irresponsible one, or whether it is a mere inanimate force, or a force in nature, or a disease.” Bishop Non-Contract Law (1889), sec. 39; Barrow on Negligence, 25; Cooley on Torts (3 Ed.), p. 1471; Slater v. Mersereau, 64 N. Y., 138. The other exceptions, which are not mentioned in the brief of the defendant’s counsel, disclose no reversible error, as we have stated, and require no special-comment. No Error. Olaeic, C. L, did not sit on the hearing of this case.