Riverside Cotton Mills v. Lanier

Whittle, J., delivered the opinion of the court. This is an action of trespass on the case brought by the defendant in error, W. S. Lanier, against the city of Danville and the Riverside Cotton Mills, the plaintiff in error, to recover damages for injury to a lot and buildings upon it, the property of the defendant in error, fronting on the east side of north Main street, in what is now the fourth ward of the city of Dan-ville. The injury complained of is alleged to have been occasioned by the wrongful conduct of the defendants in obstructing the flow of water through a culvert under the roadbed of the Southern Railway Company, and River street, in the city of Danville, in and upon a lot of the defendant, the Riverside Cotton Mills. The plaintiff maintains that the obstruction referred to prevents the water from escaping through the culvert and across the lot of the Riverside Cotton Mills into Dan river, and caused it to back up and spread over the lot and under the storehouses and into the storerooms of the plaintiff, to the great damage of his property. Upon the trial there was a verdict and judgment for the city — 159 — of Danville, which eliminates that defendant from the ease. But the jury returned a verdict against the Riverside Cotton Mills, the judgment upon which is now the subject of review. There are two counts in the declaration, to both of which the defendant demurred. The grounds of demurrer relied on are, (1) Bor the misjoinder of defendants, and (2) That the declaration, and each count thereof, shows that the original surface and natural drain described therein had been changed and made artificial, and the course and flow of the surface water from the adjacent watersheds had been diverted and gathered into artificial channels by the owners and grantors of the plaintiff and other owners of the lands lying above the lot of the defendant, and emptied in accumulated volume upon its lot. Also, that the culvert referred to was extended upon defendant’s land without authority, and constituted a trespass upon that property. In respect to the first ground of demurrer, the general rule is that any number of tort feasors may be joined in the same action, where all are alleged to have participated in the wrong. They may be sued jointly or 'severally, at the election of the plaintiff; and that is true, notwithstanding there may exist a difference in the degree of liability, or the quantum of evidence necessary to establish such liability. But, if there had been a misjoinder, the remedy by statute now is to move the court to abate the suit or action as to the party improperly joined, and to proceed against the others as if such misjoinder had not been made. Acts 1895-’6, p. 453; Lee v. Mut. R. F. L. Asso., 97 Va. 160, 33 S. E. 556. The second ground of demurrer is based upon a misconception of the allegations of the declaration. The first count alleges that when the plaintiff acquired the lot in question there was a branch or natural drain, which conducted the water from a bold spring, and also the surface water from an extensive watershed, through the rear part of plaintiff’s lot and under one of his storehouses, over an adjoining lot to a receiving well near — 160 — the right of way of the Southern Railway Company, leading into a public culvert under the control of the city of Danville, through which all of said water was carried under the roadbed of the railway company and under River street, a public highway of the city into Dan river, on a lot owned by the defendant, the Riverside Cotton Mills. The second count varies from the first in that it charges that the drain or water channel referred to was established before the memory of man as a well defined water way from a very extensive watershed into Dan river about one hundred feet from plaintiff’s lot; that between plaintiff’s lot and Dan river, about thirty years prior to the institution of this action, a railroad, now the Southern Railway, was built across the water drain, and to avoid any interference with the drain or water way, a large and ample culvert was constructed under the railroad bed, which continued the drain without interruption; that soon thereafter the property owners along the drain or water way built and graded North Main street, and improved the lots running back therefrom across the drain, including plaintiff’s lot, by filling them in and filling the drain along the whole length thereof to the culvert under the railroad, at which point a large square well was built around the culvert, so that the mouth of it was not obstructed or impaired, but was raised and adjusted so as to correspond with the elevation of the drain and the aforesaid improvements. That the town of North Danville, in the limits of which plaintiff’s lot and the watershed and drain were located, acting under its charter powers, began at the lower end of the culvert, as constructed by the railway company, and extended it to Dan river on a lot then owned by the defendant, the city of Danville, over which culvert, so constructed, the city of Danville built two public highways, one of which led over the culvert to a railroad station, and the other across the same parallel with Dan river, now known as River street; that subsequently the city sold and conveyed its lot, with the end of the culvert thereon emptying the water — 161 — into Dan river, to the defendant, the Riverside Cotton Mills; that the Riverside Cotton Mills made valuable improvements on the lot, and soon thereafter the corporate limits of the city of Danville were so enlarged as to embrace the territory of Rort.k Danville; that from time immemorial, all along the drain, property had been bought, sold and improved with respect to the existence of the drain, and that plaintiff acquired and improved his lot, depending upon the continued existence and maintenance of the drain to Dan river as it had formerly existed. The declaration also alleges the wrongful stoppage of the lower end of the culvert by the defendants on the lot of the Riverside Cotton Mills, and the consequent damage to the property of the plaintiff by the obstruction to the flow of water along the drain across his lot. It will thus be observed that, in point of fact, the declaration is not amenable to the objections contained in the second assignment, and sets out a good cause of action. There was no error, therefore, in the judgment of the trial court overruling the demurrer. Exception was also taken by the plaintiff in error to the action of the court in giving and refusing certain instructions. Without undertaking to discuss the instructions seriatim,, it is sufficient to remark that the ruling of the court, with respect to them, is without error, and that the instructions which were given, read in connection with the pleading and evidence, fully and fairly submitted the law of the case to the jury. The remaining assignment of error is, that the court overruled the motion of the defendant to set aside the verdict, as contrary to the law and evidence. In considering this assignment, it must be borne in mind that the case stands here as on a demurrer to evidence, and it is beyond the province of this court to follow counsel for the plaintiff in error in his discussion of the countervailing evidence upon which he relies to sustain his theory of the case. Acts — 162 — 1891-’2, p. 962, amending sec. 3484 of the Code. Southern Ry. Co. v. Aldridge's Adm'x, 101 Va. 142. The testimony which it is permissible to consider shows that prior to the construction of the culvert in question there was above it a natural drain, through which the water from a spring and the surface water which gathered in a ravine or hollow flowed into Dan river. In the year 1874, the Virginia Midland Railroad Company, in constructing its roadbed across the mouth of that ravine, provided a culvert for the passage of the water which naturally flowed through the drain. In the year 1883, the town of North Danville, in improving River street by raising its grade, extended the culvert under the same, from which the water flowed into a natural open drain across the lot, then owned by the city of Danville, into Dan river. In the year 1893, the city of Danville sold the lot to the Riverside Cotton Mills, which company, in the year 1897, so obstructed the mouth of the culvert as to prevent the water from passing through it, and occasioned the damage to the property of the plaintiff for which he sues. While it appears that the lot owners fronting on the east side of North Main street have filled in their lots, as described in the declaration, it also appears that the improvements made along the ravine decreased rather than increased the flow of surface water through the lot of the defendant, the gutters along North Main street carrying off surface water from the watershed on the west side of the street which formerly flowed into the ravine, and filling in the lots on the east side caused some of the surface water, which before the improvement flowed down the ravine, to find an outlet along North Main street. The doctrine seems to be well established that no change or innovation in the distribution of water from a superior to an inferior tenement is material unless it operates to prejudice or injure in some way the inferior tenement. Peck v. Goodbertell, 109 N. Y. 180, 16 N. E. 350. Thus in McCormick v. — 163 — Horan, 81 N. Y. 86, 37 Am. Rep. 479, it was said, that the right of an owner of lands through which a water course runs, to have the same kept open, and to discharge therein the surface water which naturally flows thereto, is not limited to the drainage and discharge of surface water in the same precise manner as when the land was in a state of nature, unchanged hy cultivation or improvements, but that the owner of such lands might change and control the natural flow of the surface water therein, and by ditches or otherwise accelerate the flow or increase the volume of water which reaches the stream, and if he does this in the reasonable use of his own premises he exercises only a legal right. In Jones on Easements, sec. 766, it is said: “The owner of land through which a water course runs is liable for obstructing the channel and turning the water from its channel upon adjacent land to its injury. He is liable for storing the water by a dam, and then discharging it in such quantities as to overflow the banks of the stream, and injuring the lands of a riparian owner below, and may be restrained by injunction. He is liable also for obstructing the channel and thereby throwing the water back upon the land of the upper proprietor.” Citing in support of the last proposition Ames v. Dorset Marble Co., 64 Vt. 10, 23 Atl. 857. At sec. 768, the learned author observes: “A drain or ditch established by the acquiescence of two adjoining landowners cannot be obstructed or abolished by the lower or servient owner alone without the consent of the upper or dominant owner, if the drain or ditch has been constructed in accordance with the natural flow of the water, and the quantity of the water has not been increased, nor its flow diverted, by the owner of the higher land. The rights and duties of the original parties in such case pass to their grantees with the land.” Vannest v. Fleming, 79 Iowa 638, 44 N. W. 906, 8 L. R. A. 277, 18 Am. St. 387. Again, it is an agreed fact that the whole of the .ravine, from — 164 — its head to the river, including the lot of the Riverside Ootton Mills, at one time belonged to a common owner. When, therefore, the common owner divided the tract into separate lots and conveyed them to different parties, the grants carried, by implication, to the upper lot owners the easement of flowage for spring and surface water, along natural channels over the lands of lower lot owners to the river. Such easement, or quasi easement being apparent and continuous and reasonably necessary to the enjoyment of the upper tenements, passed to purchasers by implied grant. Scott v. Beutel, 23 Gratt. 1; Hardy v. Mc-Cullough, 23 Gratt. 251; Stevenson v. Wallace, 27 Gratt. 77; Sanderlin v. Baxter, 76 Va. 299, 44 Am. Rep. 165; Scott v. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. 749. Applying the foregoing principles to the testimony in the case, the judgment complained of is without error, and must be affirmed. Affirmed.