Darr v. Carolina Aluminum Co.

WiNBORNE, J. The evidence presented in the record on this appeal, considered in the light most favorable to plaintiffs, is insufficient to require the submission of issues to the jury. The action is laid upon allegations that defendant has obstructed the natural flow of watercourses over plaintiffs’ land. Plaintiffs offered evidence tending to show that it is the obstructing of the flow of water in Meadow Ditch on the lands of the Shoaf heirs that has caused the alleged damage to their. land. But on the very threshold of the case there is a lack of evidence tending to show that Meadow Ditch is a natural stream or water course. To the contrary, all the evidence discloses that it is an artificial stream — a ditch cut through a ridge of land which separates plaintiffs’ bottom land from *771 tbe Sboaf land through which the ditch runs in entering Tanyard Branch, where plaintiffs claim the obstructions to be. In Brown v. R. R., 165 N. C., 392, 81 S. E., 450, it is said that the upper landowner “cannot artificially increase the natural quantity of water, or change its natural manner of flow by collecting it in a ditch and discharging it upon the servient land at a different place or in a different manner from its natural discharge.” Porter v. Durham, 74 N. C., 767, at 780; Briscoe v. Parker, 145 N. C., 14, 58 S. E., 443. In Porter v. Armstrong, 129 N. C., 101, 39 S. E., 799, speaking to the question of what is a natural watercourse, the court said: “Much stress seems to be laid upon the fact that the natural drainway of the Pigford farm was through Strawberry Canal. This may be so in the sense that it is the most convenient way to drain the said farm, but that fact does not make the canal a natural watercourse. A watercourse consists of bed, banks and water. Angelí on Watercourses, sec. 4; Gould on Waters, sec. 41. A natural watercourse has such characteristics while in a state of nature and without artificial construction. Natural watercourses are such as rivers, creeks, and branches. A canal can never come under such a designation, unless it is a mere enlargement of a natural watercourse.” Applied to the case in hand, Meadow Ditch as described in the evidence brought forward, not being.a natural watercourse, and, nothing else appearing, plaintiffs have no legal right to collect the water on their land and discharge it through that ditch over the lands of another. But, while plaintiffs do not allege that they have acquired any easement or right to use Meadow Ditch across and on the land of the Shoaf heirs, it is here contended by them that they have the legal right to drain their lands through the ditch on their land and through the ridge and land of intervening owners into Tanyard Branch, for two reasons: (1) By necessity; (2) By prescription. If it be a fact that drainage through Meadow Ditch is the most feasible way to drain the plaintiffs’ farm, that fact does not make the ditch a natural watercourse. Porter v. Armstrong, supra. Commenting upon a case of similar character, Angelí in his treatise on the Law of Watercourses, p. 134, quotes from Butler v. Peck, 16 Ohio St., 334, where this question is stated: “Whether an owner of land having upon it a marshy sink or basin of water which basin as to considerable portion of the water which collects within it, has no natural outlet, may lawfully throw such water by artificial drains, upon the lands of an adjacent proprietor?” and answers: “We are clear that no such right exists. It would sanction the creation, by artificial means, of a servitude which nature has denied.” *772 The question here is not whether it is the only way to drain plaintiffs’ meadow land, but whether plaintiffs have acquired the right to drain their lands by means of an artificial ditch over the lands of another. On the second contention: The rule with respect to acquiring prescriptive rights over private property is firmly imbedded in the law. In 17 Am. Jurisprudence, 986, Easements, sec. 85, the writer states: “It is a well settled rule that a right of drainage of waters through the lands of another may be acquired by prescription. The right, however, can be created only by actual use which has been adverse, peaceable, uninterrupted, and continued for the prescriptive period.” In Snowden v. Bell, 159 N. C., 497, 75 S. E., 721, Allen, J., said: “It is well established in this State that the right to a private way may be acquired by a continuous adverse use for 20 years, and that a mere user for the required period is not sufficient to confer the right.” See, also, same case reported in 166 N. C., 208, 80 S. E., 888. Boyden v. Achenbach, 86 N. C., 397; S. v. Norris, 174 N. C., 808, 93 S. E., 950; Nash v. Shute, 184 N. C., 383, 114 S. E., 470; Perry v. White, 185 N. C., 79, 116 S. E., 84; Durham v. Wright, 190 N. C., 568, 130 S. E., 161; Weaver v. Pitts, 191 N. C., 747, 133 S. E., 2; Grant v. Power Co., 196 N. C., 617, 146 S. E., 531; Gruber v. Ewbanks, 197 N. C., 280, 148 S. E., 246; Hemphill v. Board of Aldermen, 212 N. C., 185, 193 S. E., 153. In Boyden v. Achenbach, supra, it was held that “there must be some evidence accompanying the user giving it a hostile character and repelling the inference that it is permissive and with the owner’s consent, in order to create the easement by prescription and impose the burden on the land.” This principle is cited with approval in Nash v. Shute, supra. In Perry v. White, supra, this Court, speaking through Clark, C. J., said: “Conceding that the ditch had existed and been kept up continuously for draining plaintiffs’ land for the past 30 years over the land of the defendant, the plaintiffs would not have acquired the right of easement thereby. This user may have been permissive, and the law presumes that it was. Mere user for 30 years will not confer an easement unless it appears that it was adverse.” Applying these principles to the case at bar, mere user is the only evidence of right in plaintiffs to use Meadow Ditch across the Shoaf lands. The presumption that this use was permissive, and not adverse, is not rebutted. If it then be conceded that the condition at the junction of Yadkin River and Tanyard Branch, and of Tanyard Branch and Meadow Ditch are as plaintiffs contend, defendant at most has deprived them of facilities for their own drainage which they before possessed and used, but without vested right so to do. See Willey v. *773 R. R., 98 N. C., 263, 3 S. E., 485, in which the factual situation and rights of parties are not dissimilar to the present case. This disposes of the appeal, and dispenses with necessity to inquire into the relative rights and responsibilities of the parties with respect to conditions about which plaintiffs complain. The judgment below is Affirmed.