Bell v. Norfolk Southern Railroad

Supreme Court of North Carolina

Bell v. Norfolk Southern Railroad

7 S.E. 467, 101 N.C. 21

CourtSupreme Court of North Carolina

DecidedSeptember 5, 1888

StatusPublished

Cited by2 cases

This text of 7 S.E. 467 (Bell v. Norfolk Southern Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bell v. Norfolk Southern Railroad, 7 S.E. 467, 101 N.C. 21 (N.C. 1888).

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Opinion

Davis, J.,

(after stating the case.) There is no error. It is found as a fact that the ditches, of which the plaintiffs complain, were necessary for the purposes of the road bed; that the road bed could not have been drained in any other *23 way, and they were not outside or off of the land which had been condemned and paid for by the defendant, including “ the legal incidental damages to the land not taken.”

Every one has the right properly to use his own, and without this drainage for the surface water, the defendant’s right of way, for which the plaintiff had been paid, would have been of no value, and if, as an incidental consequence of the lawful and rightful use of its easement by the defendant company, the' surface water, damages the land of the plaintiffs’ testator it is damnum a,baque injuria, and for which he cannot recover as for a tort. R. & A. Air Line Railroad v. Wicker and others, 74 N. C., 220.

It is no infringement of the maxim, “Sic tdere tuo ut alienum non laedas.” Washburn’s Easements and Servitude, 453.

It was said in Willey v. R. R., 98 N. C., 263, speaking of the condemnation of the right of way: “ Everything necessary and incident, to the original making and subsequent operating the road, must be intended to have passed as against the owner of the condemned land,” and the right to cut such ditches on the condemned land as will protect the road bed against accumulating surface water is a necessary incident.

The water drained by the defendant’s ditches was all surface water, except occasionally, after heavy rains, the water from the Dismal Swamp would spread over the surface of the ditch. There was no natural or artificial drain to the Dismal Swamp and the ditches were not designed to drain it, and the overflow was none the less of surface water, which, we apprehend, could not have been caused or prevented by the ditches. In R. R. v. Wicker, supra, a distinction is taken between diverting or obstructing a natural or artificial drain-way, and one by which surface water is drained.

In the latter, in measuring the compensation to the landowner, the resulting damage should be estimated, and this *24 was one of “ the legal incidental damages,” which has been assessed and paid for as found by the Court.

In the former, it is the duty of the company, in constructing its road bed, to provide for the discharge of the waters through its ascertained drainway, whether natural or artificial. Affirmed.

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Davis, J.,

(after stating the case.) There is no error. It is found as a fact that the ditches, of which the plaintiffs complain, were necessary for the purposes of the road bed; that the road bed could not have been drained in any other *23 way, and they were not outside or off of the land which had been condemned and paid for by the defendant, including “ the legal incidental damages to the land not taken.”

Every one has the right properly to use his own, and without this drainage for the surface water, the defendant’s right of way, for which the plaintiff had been paid, would have been of no value, and if, as an incidental consequence of the lawful and rightful use of its easement by the defendant company, the' surface water, damages the land of the plaintiffs’ testator it is damnum a,baque injuria, and for which he cannot recover as for a tort. R. & A. Air Line Railroad v. Wicker and others, 74 N. C., 220.

It is no infringement of the maxim, “Sic tdere tuo ut alienum non laedas.” Washburn’s Easements and Servitude, 453.

It was said in Willey v. R. R., 98 N. C., 263, speaking of the condemnation of the right of way: “ Everything necessary and incident, to the original making and subsequent operating the road, must be intended to have passed as against the owner of the condemned land,” and the right to cut such ditches on the condemned land as will protect the road bed against accumulating surface water is a necessary incident.

The water drained by the defendant’s ditches was all surface water, except occasionally, after heavy rains, the water from the Dismal Swamp would spread over the surface of the ditch. There was no natural or artificial drain to the Dismal Swamp and the ditches were not designed to drain it, and the overflow was none the less of surface water, which, we apprehend, could not have been caused or prevented by the ditches. In R. R. v. Wicker, supra, a distinction is taken between diverting or obstructing a natural or artificial drain-way, and one by which surface water is drained.

In the latter, in measuring the compensation to the landowner, the resulting damage should be estimated, and this *24 was one of “ the legal incidental damages,” which has been assessed and paid for as found by the Court.

In the former, it is the duty of the company, in constructing its road bed, to provide for the discharge of the waters through its ascertained drainway, whether natural or artificial. Affirmed.

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Bluebook (online)

7 S.E. 467, 101 N.C. 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-norfolk-southern-railroad-nc-1888.

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