Riverside Cotton Mills v. Lanier

1. Pleading—Torts—Joint and Séveral—Misjoinder—Demurrer—Motion to Abate.—Any number of tort feasors may be sued jointly if it be alleged that all participated in the wrong. The plaintiff has his election to sue all, or any one, and the right to join all is not affected by the fact that there may exist a difference in the degree of their liability, or of the quantum of evidence necessary to establish such liability. Under statute, however, in this State the remedy for a misjoinder of parties 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 no misjoinder had been made. 2. Appeal and Error—Conflicting Evidence.—A plaintiff in error, in the appellate court, occupies the position of a demurrant to the evidence, and if the evidence is conflicting the judgment ■ of the trial court will be affirmed. 3. Waters—Change of Distribution—Superior and Inferior Tenements.—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. 4. Waters—Easement of Drainage—Successive Grants from a Common Grantor.—If the owner of an entire tract or lot of land subdivides it into separate lots, and conveys them to different persons, the successive grants of the upper lots carry by implication to the purchasers thereof the easement of flowage for spring and surface water along natural channels over the lands of lower lot owners. Such easement, or quasi easement, when apparent, continuous and reasonably necessary to the enjoyment of the upper tenement, passes to the purchasers by implied grant.

Error to a judgment of the Corporation Court of the city of Danville in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error and the city of Danville were the defendants. The evidence sufficiently appears in the opinion of the court. The following instructions referred to in the opinion were given: Plaintiff’s Instruction, Ho. 1. “The court instructs the jury that it is the duty of the city of Danville, as a municipal corporation, acting under its charter, to keep the public culverts and drains, under its control, open and free from obstructions; that if they believe from the evidence that the culvert in question running under the railroad and River street, to Dan river, at a point on the lot of defendant Riverside Cotton Mills, which formerly received the water from the said drain through plaintiff’s lot, is a public culvert and under the control of the said city, that then it was the duty of said city to use reasonable diligence in keeping it open and free for the passage of such water as was accustomed to flow through it; and that, after a reasonable notice thereof, if said city failed to use reasonable diligence in causing said obstructions to be removed, then it is liable to plaintiff for such damage as he thereby suffered up to the 9th day of September, 1899, being the date of the injunction obtained against said city by the defendant Riverside Cotton Mills. “And, further, the court instructs the jury that if they believe from the evidence that said culvert is a public culvert and that the obstructions of said culvert complained of by plaintiff were placed therein or thereat by defendant Riverside Cotton Mills, that then it is also liable to plaintiff for the damage thereby caused him. Eo. 2. “The court further instructs the jury that if they believe from the evidence that the drain running from between the hills above plaintiffs lot, through the same, into the culvert under the railroad and River street, thence to Dan river, is an ancient, well-defined, natural water^way, made or cut into the soil by flowing surface or spring water, which from time immemorial has conveyed the surface and spring water from above, through plaintiff’s lot into Dan river, then the defendants had no right to close it up or to cause it to be obstructed below plaintiff’s lot, and force back upon him water and its contents, which from time immemorial had been carried in said drain, through his lot, to the river, and that if defendants, or either of them, did so obstruct said drain below plaintiff’s lot, and thereby damage him, then that defendant causing the same is liable to the extent of the damage thereby done to plaintiff, whether the said culvert under River street which forms a part of said drain, is a public culvert or not. Eo. 3. “The court further instructs the jury that if they believe from the evidence and in the light of the other instructions given by the court, that either one of defendants is guilty of the charges in the declaration and liable in damages therefor, and that the other defendant contributed to the tort or wrong, then both are individually responsible for the whole wrong, as if each had done all without help.” Instruction for City of Danville, Eo. 4. “On motion of the city of Danville, the court instructs the jury that although they should believe from the evidence that the town of Eorth Danville extended the culvert in question from the railway embankment to and across tbe Halifax road, now called River street, and into and upon the lot now owned by tbe Riverside Mills, thence emptying tbe water from tbe culvert into Dan river, tbis alone did not make tbe culvert a public sewer or drain, and did not charge tbe town of Horth Danville, or tbe city of Danville with tbe duty of maintaining tbe culvert free of obstruction for its entire length, whether tbe same was under its streets or under and upon private property.” Instruction of City of Danville, Ho. 5. “Tbe court instructs tbe jury that unless they believe from tbe evidence that tbe drain and culvert in question was a public drain and culvert, wholly under tbe control of said city, there is no duty or obligation upon tbe said city to keep tbe same free from obstruction, and they must find for tbe defendant, unless they shall further believe from tbe evidence that tbe injuries complained of were caused wholly by defects in tbe construction and maintenance of that part of tbe culvert under tbe city’s property. And they are further instructed that tbe acts of tbe city, mayor, policeman and engineer in going upon and opening tbe obstructed culvert upon tbe complaint of tbe plaintiff, or in attempting to open, or in giving directions to open tbe obstructed culvert, are not sufficient to charge tbe city of Danville with tbe control, or ownership of said culvert, unless tbe jury believe from tbe evidence that tbe acts of said officers were authorized or ratified by tbe Council of said city.” Instruction of Riverside Cotton Mills, Ho. 6. “On motion of tbe Riverside Cotton Mills tbe court further instructs tbe jury that even if they should believe from tbe evidence in tbis cause that tbe plaintiff has been damaged by obstruction to tbe flow of water over bis lot, there should be no verdict against the defendant, the Riverside Cotton Mills, therefor, unless they shall also believe from the evidence that the damage was occasioned by some wrongful conduct of the said Riverside Cotton Mills.” Instruction of Riverside Cotton Mills, Ho. Y. “On motion of the Riverside Cotton Mills, the court further instructs the jury that the Riverside Cotton Mills is not responsible for any damage they may believe from the evidence in the cause the plaintiff sustained in consequence of obstruction to the flow of water from his lot occasioned by his own buildings or by his neglect to keep open a way for the water to flow off from his lot or by any use of his lot, made or permitted by him, nor are they responsible for damages resulting to the plaintiff’s property by obstructions to the flow of the water from his lot by buildings, or otherwise, occasioned by other persons than the Riverside Cotton Mills.” Instruction of Riverside Cotton Mills, Ho. 8. “On motion of the Riverside Cotton Mills, the court further instructs the jury that if they believe from the evidence in this cause that at the time of, and before the well opened on the east side of the railroad under the Baugh house for the water coming down in the rear of the plaintiff’s and adjacent stores to pass into and out from, was filled over, and the water was flowing over it, and over the railroad, and that the culvert into which it led was also filled over at the end on the Riverside Cotton Mills lot, and that it was not in use then to carry off the water, but the water being surface water, was passing off over the railroad, there was no duty upon the Riverside Cotton Mills to keep it open at the end on their lot, and if they failed to do so, the plaintiff has no cause of action or right to recover damages .against them therefor.” Instruction, of Riverside Cotton Mills, Ro. 9. “On motion of the Riverside Cotton Mills, the court further instructs the jury that if they believe from the evidence in this cause that damage to the plaintiff’s property was done by surface water only, and that the defendant, the Riverside Cotton Mills, did nothing to occasion it except to grade up and level the surface of its lot in tona fide improving it and building their mill and appurtenances upon it, they must find for the defendant, the Riverside Cotton Mills.” Instruction Ro. 10. “The court instructs the jury that the meaning of a natural water course, or stream, as the term is applicable to the case under consideration, is a place where spring or surface water has been accustomed to gather and flow along a well-defined channel, which by frequent running it has worn or cut into the soil.” Instruction of Riverside Cotton Mills, Ro. 11. “The court further instructs the jury that if they believe from the evidence in this cause that the Riverside Cotton Mills stopped the culvert in question at its mouth on their lot, in grading and improving its lot, and thereby obstructed the flow of the water through it, and caused it to stand upon, and damage the plaintiff’s lot, and shall also believe from the evidence in the cause, that, notwithstanding this conduct upon the part of the defendants, the plaintiff, after knowing of it, by the exercise of reasonable care and prudence, could have prevented the injury or damage to his lot therefrom, and did not do it, they must find for the defendants. Given as amended.” The following instructions tendered by the Riverside Cotton Mills were refused: Ho. 12. The court instructs the jury that a natural water course is a natural stream flowing in a defined bed or channel, with banks and sides, having permanent sources of supply. Ho. 13. “On motion of the Riverside Ootton Mills, the court instructs the jury that if they believe from the evidence in this cause that sone one without legal authority and proceedings, and without the consent of, or agreement with, the Riverside Ootton Mills, or any previous owner thereof, built and extended the culvert disclosed in the evidence beyond the Halifax road, or River street, on to and upon the lot of the Riverside Cotton Mills, and thereby caused to be conducted to and emptied upon the lot of the Riverside Cotton Mills surface water, and that the Riverside Cotton Mills, in a bona fide and legitimate improvement of its lot, and in grading it up for that pur-' pose, graded above and stopped the mouth of said culvert, such act of the Riverside Cotton Mills was not wrongful and afforded no cause of action to the plaintiff, even if he was damaged in consequence of obstruction to the flow of surface water thereby, and even though the surface water was thereby caused to flow back upon or obstructed from flowing away from plaintiff’s property.” Ho. 14. “On motion of the Riverside Cotton Mills, the court further instructs the jury that if they believe from the evidence in this cause that some one, without legal authority and proceedings, and without the consent of, or agreement with, the Riverside Ootton Mills, or any previous owner thereof, built and extended the culvert shown in the evidence to have been originally built by the railroad company under its roadbed, from its terminus, as built by the railroad company, across the Halifax road, or River street, to and upon the lot of the Riverside Cotton Mills, and that through this culvert surface water from the lots of owners on the opposite side of the railroad, including the lots of the plaintiff, flowed, on to and was emptied on the lot of the Riverside Cotton Mills, bearing to and depositing thereon, billets of wood, tin cans, ashes, mud, sand, and other rubbish and noxious matter, from the lots of landowners, including the plaintiff, and that the Riverside Cotton Mills, in grading and levelling its lot for the bona fide purpose of building upon and improving, and in building upon and improving it, filled it above and stop-lied the mouth of that culvert on its own ground, so that the flow of surface water and deposit of rubbish and noxious matter it brought and emptied on the lot of the Riverside Cotton Mills lot was thereby prevented at that point, and the surface water and refuse matter caused to flow back upon or stand on plaintiff’s lot, no cause of action or right to recover damages of the Riverside Cotton Mills was thereby given plaintiff.” Ho. 15. “On motion of the Riverside Cotton Mills, the court further instructs the jury that if they believe from the evidence in this cause that the lot owned by the Riverside Cotton Mills lies along the river and between the Halifax road, or River street, and the river, and that many years ago the owner of the property lying on the opposite side of the railroad and extending along up Horth Main street on the east side thereof from the railroad to the spring at the head of the ravine shown by the evidence in this cause to have existed many years ago, undertook to grade and improve said property and in doing so took the water from said spring in pipes to and along down Horth Main street to a railroad tank, and some of it from thence to their depot building, thus diverting said spring branch from said ravine and filled said ravine and the bed along which said spring branch had previously run all the way down from said spring to the railroad below, to the heighth of many feet, thereby making building lots fronting on said street and extending across where said ravine was, and that this filling up of the ravine raised the surface of the ground so that the surface water flowing over it when it reached the railroad below, was thirteen feet or more above the elevation at which it passed that point before the ravine was filled as above herein set out, and that at that point it was emptied into a well constructed to receive it and passed perpendicularly down to the mouth of a-culvert constructed to take it under the railroad and then into an extension of this culvert made without legal authority or permission of the owners of the lot under the Halifax road, or River street, and on to and upon the lot of the Riverside Cotton Mills and discharged from such extended culvert on to the Riverside Cotton Mills lot, bearing wood and rubbish and refuse matter. And the Riverside Cotton Mills, in building upon and bona fide improving its lot graded and levelled it above the mouth of the culvert on its lot, thereby stopping it at its mouth and preventing the flow of said surface water and refuse matter through it, and impeding or preventing the flow of the surface water over plaintiff’s lot, such conduct of the Riverside Cotton Mills afforded no cause of action against them by the plaintiff for any injury resulting to him by thus impeding the flow of the surface water over and from his lot.” Ho. 16. “On motion of the Riverside Cotton Mills, the court instructs the jury that if they believe from the evidence in this cause that by the extension of the culvert from its terminus, as constructed by the railroad, across the Halifax road, or River street, and on to and upon the lot of the Riverside Cotton Mills, the water that flowed through it was diverted from its course and emptied upon that lot of the Riverside Cotton Mills at a point and made to cross it along a line different from its usual course and flow, and from what it would have done if it had heen left free to flow away, and the Riverside Ootton Mills in building upon and improving its lot, graded and levelled it above the mouth of this culvert on its lot so as to stop it and prevent the flow of the water through it, such conduct on their part gave no cause of action or right to recover damages to the plaintiff, even if thereby he suffered damage because of impeded flow of surface water over and from his lot.” Ro. 17. “On motion of the Riverside Cotton Mills, the court instructs the jury that surface water is held in the language of the law to be a common enemy, against which each owner of land has the right to protect himself as best he may, and is not liable in damages to adjacent and coterminus owners of land for protecting himself against the same. “So, the court further instructs the jury that if they believe from the evidence in this cause that the defendant, Riverside Cotton Mills, in 1898, purchased of the city of Danville a lot adjacent to and lying below the lot and property of the plaintiff, for damages, to which this action is brought, that at the time the said defendant became the owner of this lot there projected in and upon said lot a pipe or conduit which constituted the extension of an artificial culvert or drain-way, which had been constructed for the passage way of the surface water from the lands above, that neither said culvert or drain-way or the said pipe or conduit so extending in and upon the lot aforesaid, now owned by the said defendant, were constructed under any legal authority, or contract with the Riverside Cotton Mills, or with their consent, or with that of the city of Danville, from whom the said defendant purchased said lot or any prior owner thereof, or with their consent, and that the defendant, the Riverside Cotton Mills, in grading and filling up its said lot for the purpose of improving the same, closed up the said pipe or conduit, so projecting in and upon its lot, that it had the right so to do, and that if this resulted in backing surface water upon the plaintiff’s property, yet the said defendant is not responsible for damages caused thereby.”