Hooker v. Norfolk Southern Railroad

HoKE, J., after stating the case: It is now well established with us that “Water cannot be diverted, but may be increased and accelerated.” The principle obtains in respect to both corporations and individual owners of property, and has been applied and illustrated in many well-considered decisions of the Court. Roberts v. Baldwin, 151 N. C., 407; Mizell v. McGowan, 129 N. C., 93; Hocutt v. R. R., 124 N. C., 214; Parker v. R. R., 123 N. C., 71. Stated in a way more directly relevant, it was held in Hocutt’s case, supra, that, “Neither a corporation nor an individual can divert water from its natural course, so as to damage another; neither can they cut ditches through a watershed and conduct water to a water-course, insufficient to carry it off, whereby the water is flooded upon the lands of another.” There was testimony on the part of plaintiff tending to show that the defendant company in making its roadbed had, by lateral ditches, conveyed water from its natural course and watershed into a stream called Patrick’s Branch or Hardee’s Run, a natural water-course, flowing through plaintiff’s lands, *158 and bad thereby overcharged said stream, causing same to overflow and pond back upon said lands, to plaintiff's great damage. There was much testimony on part of defendant in denial and rebuttal of plaintiff’s evidence, and tending to show that there had been no diversion of water into said run, and that the injury complained of was caused, in fact and in truth, by a failure to properly clear said run of obstructions therein, upon and below the lands of plaintiff. Under a clear and comprehensive charge, in which the principles applicable were correctly stated by the court, the jury have accepted the plaintiff’s version of the case, and we find no error that gives defendant any just ground of complaint. We cannot approve the position that- recovery should be denied because the diverted water, before reaching plaintiff’s lands, where the damage occurred, first passed through the ditches of an adjoining proprietor. Under the charge, the jury have found that the injury was caused by reason of the water being diverted, and on the facts in evidence we do not see that the existence of these ditches could prevent the said diversion from being the proximate cause of the injury. The position, however, is not open to defendant, on this testimony, for it appeared that the ditches in question were enlarged by the neighbor at the instance of defendant and the work was paid for by the company in order to provide for the increased flow of water. The court also laid down the correct rule as to the admeasurement of damages, and the charge was fully responsive to defendant’s prayer for instruction on that question. It is well recognized that a prayer for instructions need not be given in its exact language if the general charge is sufficiently responsive and gives a correct statement of the law applicable to the question presented. Patterson v. McIver, 90 N. C., 493; Edwards v. Phifer, 121 N. C., 391. Nor is the objection well founded that the wife of the original plaintiff, T. E. Hooker, was joined as coplaintiff after the jury was impaneled. True, it has been held in this State, “That a court has no power to convert a pending action that cannot be maintained into a new one by admitting a new party plaintiff, who is solely interested.” Merrill v. Merrill, 92 N. C., 657. *159 But no such, case is presented here. The land alleged to be damaged was held under a deed to T.' E. Hooker and his wife, and while it seems the husband might have proceeded alone if the same had been prosecuted for a simple trespass (West v. R. R., 140 N. C., 620), inasmuch as the question was submitted and determined on an issue as to permanent damages, the wife was a desirable and perhaps a necessary party, in order that on payment of permanent damages an easement might pass to the defendant. Porter v. R. R., 148 N. C., 563. There.was no suggestion, certainly no indication, of any surprise by reason of this change of parties. So far as appears, the witnesses on the issues were the same in the one case as in the other and the entire matter seems to have been fully presented to the jury. We find no reason for disturbing the conclusion they have reached, and the judgment on the verdict must be affirmed. No error.