Jones v. Home Building & Loan Ass'n of Thomasville

Supreme Court of North Carolina

Jones v. Home Building & Loan Ass'n of Thomasville

114 S.E.2d 638, 252 N.C. 626, 1960 N.C. LEXIS 633

CourtSupreme Court of North Carolina

DecidedJune 10, 1960

Docket382

StatusPublished

Cited by9 cases

This text of 114 S.E.2d 638 (Jones v. Home Building & Loan Ass'n of Thomasville) 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

Jones v. Home Building & Loan Ass'n of Thomasville, 114 S.E.2d 638, 252 N.C. 626, 1960 N.C. LEXIS 633 (N.C. 1960).

Pincite

Opinion

PaRicee, J.

Defendant, as it had a right to do (G.S. 1-134; Howze v. McCall, 249 N.C. 250, 106 S.E. 2d 236), filed in the Supreme Court a demurrer ore tenus to the complaint, and an amendment thereto allowed by the trial court in its discretion after'the close'of all the evidence introduced by plaintiffs and defendant, for the reason that the complaint, and the amendment thereto, does not state facts sufficient to constitute a cause of action, in that the complaint, and the amendment thereto, fails to allege that defendant had any knowledge of an underground stream running through its land or that any underground stream could be ascertained from surface indications, and prays that-the action be-dismissed.

*629 The facts alleged in the complaint are in substance as follows: Plaintiffs own in fee a lot of land fronting 60 feet on Winston Street in the city of Thomasville, and having a depth of 113 feet. Situate on this lot is an eight-room dwelling house, which they rent. Defendant owns a lot of land situate on the north 'side of plaintiffs’ lot, and running 89 feet on Winston Street and parallel with West Guilford Street 120 feet. When defendant purchased this lot of land,' it was much lower than plaintiffs’ lot, andi water from springs located on-plaintiffs’ lot and the lot purchased by defendant flowed' through'' a channel or channels across the lot purchased by defendant into a storm drain of the city of Thomasville, and that surface water accumulated from the surrounding property and emptied into such drain: Such conditions had existed for 20 years, andi were well .known to' defendant at the time it purchased its lot. In May 1958 defendant made excavations for the construction of a brick building on' its lot. For the south wall of its building defendant dug footings several feet below the level of the basement of plaintiffs’ house, and 'then erected a brick wall several feet above the surface of the land, thereby cutting off the flow of the springs and surface water, and causing water to back up in plaintiffs’ basement and permanently diamage plaintiffs’ house, the particulars of which damage are alleged in detail.

In making excavation for the footings and the building of the south wall defendant failed to use due diligence to ascertain the nature and character of the soil to be excavated, the extent of the excavations to be made, and the footings necessary. Defendant failed to use reasonable care to make provisions for carrying off the underground and surface waters. Defendant, by digging the footings several feet below plaintiffs’ basement for the south Avail of its building, negligently failed to use reasonable care to provide adequate drainage for the surface waters coming on its lot from plaintiffs’ lot. That all this caused damage to plaintiffs’ house.

Defendant filled in its lot higher than plaintiffs’ lot without making adequate provisions to take care of the waters which accumulated through underground streams, springs, and surface waters which has caused diamage to plaintiffs’ house to the extent that it is becoming unfit for use as residential property.

The amendment to the complaint alleges in substance the following: Defendant well kneiv before it began in April and May 1958 the construction of a building on its lot adjacent’to'plaintiffs’ house that plaintiffs’ land was south of and higher in elevation than its own, and defendant knew, or in the exercise of due diligence should have known, that surface and underground water would flow in its' natural *630 course from the land of plaintiffs onto and across its own land. To construct this building defendant dug adjacent to plaintiffs' land a-foundation wall ditch 12 to 15 inches wide, about 9 feet deep, and about 60 feet long into which underground water in large quantities flowed from the south side. Defendant knew, or in the exercise of due diligence should have known, that the building of a foundation wall in this ditch would cause underground water to back upon the premises of plaintiffs on which was located a dwelling house with a basement about 4 to 5 feet below the ground level and higher than the bottom of the foundation wall. Notwithstanding these facts, defendant built a foundation wall in the ditch which obstructed the passage of underground water or a subterranean stream from plaintiffs’ land onto and across its own land, causing the water to back up upon plaintiffs’ premises resulting in damages to plaintiffs’ land and the dwelling .house thereon, and constituting an unlawful invasion .of plaintiffs’ property.

Defendant assigns as error the denial of its motion for judgment of nonsuit renewed at the close of all the evidence. Defendant also assigns as error the denial by the trial court of its prayer for a directed verdict in its favor for the following reasons: One, plaintiffs introduced no evidence tending to show any damage resulting from the obstruction of surface water. Second, plaintiffs’ evidence tends only to show the presence of subsurface water on their premises, which it is well settled, will be presumed to be percolating water. Plaintiffs have no evidence tending to show a clearly defined channel containing subterranean water, the location and existence of which are known or ascertainable from surface indications. Therefore, plaintiffs are not entitled to recover anything for damages due to underground waters. Defendant also demurred ore tenus in the trial court to the complaint, and further assigns as error the allowance by the trial court of plaintiffs’ motion to amend their complaint made at the close of all the evidence.

Plaintiffs’ evidence favorable to them tendis to show the following facts: Plaintiffs own an eight-room dwelling house with bath and basement, which they rent, situate about eight feet from their north property line, which line is adjacent to defendant’s line, on Winston Street in the city of Thomasville. The basement is built of reinforced concrete with a brick foundation and a three-inch thick concrete floor, and has in it two rooms and a bath. The south wall of defendant’s-building is erected-right on its south property line,- and runs the entire length of plaintiffs’ house. ...

Defendant’s lot, .Which-is north of plaintiffs’ lot, extends from plain-. *631 tiffs’ north line to West Guilford Street. From plaintiffs’ lot to West Guilford Street there is a decline or slope of about eight feet: the change in elevation from plaintiffs’ house to the south wall of defendant’s building is about three feet. Defendant’s lot had been filled in with dirt by the city of Thomasville, and was damp and wet all the time. West of defendant’s property and northwest of plaintiffs’ property the land was grown up with willows, and the soil was wet, and water stood there a good deal of the time. The land south of plaintiffs’ lot is much higher than their lot. Across defendant’s lot was a storm sewer or drain.

The depth of plaintiffs’ basement is around four or five feet below the ground level. From 1950 until April or May 1958 it was a dry basement, though two weeks before the trial during a heavy rain water came into the basement for a few minutes through a basement window on the south side level with the ground.

In April or May 1958 defendant began the construction of a building on its lot. At that time Mrs. Blanche Jones Holtz, a plaintiff, told Mr.

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