Lease Properties, Inc. v. Shingleton

MORRIS, Judge. In our opinion the evidence in this case simply shows that the plaintiff paved a portion of its tract and thereby increased the flow of water onto defendants’ land. There is no evidence of any diversion of surface water by the plaintiff. As we noted in Apartments, Inc. v. Hanes, 8 N.C. App. 394, 399, 174 S.E. 2d 828, 831 (1970), cert. denied 277 N.C. 110 (1970) : “It is well established that while neither a corporation nor an individual can divert water from its natural course [290] so as to damage another, they may increase and accelerate its flow. Rice v. Railroad, 130 N.C. 375, 41 S.E. 1031 ; Davis v. Cahoon, 5 N.C. App. 46, 168 S.E. 2d 70. In the case of Davis v. R. R., 227 N.C. 561, 42 S.E. 2d 905, we find the following at pages 565, 566: ‘ “ . . . As long as the drainage results in carrying the water along the natural course the servient proprietor may not complain, even though natural barriers on the higher land have been cut down and the flow of water both accelerated and increased. Were the rule otherwise, there would be no method by which any one owner could improve his land by the construction of ditches and drains which would carry the drainage upon another’s property, because the purpose of such improvement in every instance is to hasten and increase the flow of water, and this object is only attained by the removal of natural barriers.” Fenton & Thompson R. Co. v. Adams, 211 Ill., 201, 77 N.E., 531, 535. If the owner of adjacent property on a high level were not permitted to prepare his property for any legitimate purpose to which it might be put by leveling it or clearing it or other improvement, on the theory that he had no right to accelerate the flow of water therefrom but must leave it as an absorbant to retard its flow, it would deprive such owner of the use of his property.’ ” Defendant’s argument that by asphalting a large portion of its property, the plaintiff covered up the soil and made natural saturation impossible, thereby causing a diversion of the water, is ingenious but not persuasive. We think this case is controlled by Apartments, Inc. v. Hanes, supra. No error. Judges Vaughn and Arnold concur.