Geaham, J.
The only question on this appeal is whether the evidence, taken in the light most favorable to plaintiff and giving to it the benefit of every reasonable inference which can be drawn therefrom was sufficient to withstand defendant’s motion for a directed verdict. (See
Musgrave v. Mutual Savings and Loan Association,
filed in this court on this date).
The theory of plaintiff’s complaint is that defendant, through the grading of his property, diverted surface waters from their natural flow and caused them to seep through the ground at the railway right-of-way, saturating the soil on plaintiff’s land and causing the damages alleged. The parties do not disagree over the general principle that owners of land on the higher level cannot lawfully divert the surface water or interfere with its natural flow by artificial obstruction or device so as to injure the premises of a servient owner.
Bradley v. Texaco, Inc., 7 N.C.
App. 300, 172 S.E. 2d 87, and cases therein cited. However, we find no evidence here that there was a diversion of surface water. It is true that the fill work on defendant’s property increased the flow of water toward plaintiff’s land, but the water flowing across defendant’s land after the fill work flowed to the same place that the water flowed before the fill work. The testimony of George Sparks clearly established this fact and there was no evidence to the contrary. He stated:
“There has been no grading on the 16.5 acres. All we have done is fill. Before we did anything, the rain which fell on this property went under the railroad. And that means the area up at the apex, where Miller and First came along together, the rain which fell on it in the First Street area, all along up Miller street,
all the rain that fell on that 16.5 acre property, all the rain that fell on that property was funneled and drained through the 24-inch line.
Before we did any work out there on the Hanes property on the railroad side, they had a drainage come in from each way, and the drainage from First Street all of it settled right in that area at the 24-inch line and on the Hanes property. And that was a marshy area. You take you have got a drain coming from Miller Street that goes in there, on the same side of the 16 acres we are talking about, and then you also got a drain, a storm drain system, came from First Street back in there.
All draining water right down towards this 24-inch line. And that created a marshy area right at the mouth of the 24-inch line. It was that way when I started working on it. Nor many years back, I can’t state that, but it was that way when I started working on it in 1964. It is labeled 'marshy’ in the other diagram. The Hanes property formed sort of a dropping funnel from all sides down towards this 24-inch line.
*
I have shown there by my arrows on the other diagram that the drainage from the intersection of Miller Street and the railroad, in the southwestern corner of the 16 acre tract,
that drainage, before I did anything to the property, was down toward, and in the direction of, the 24-inch line under the railroad.
And the drainage from the corner, or the intersection of First Street and the railroad, in the southeastern corner, was in a westerly direction toward the 24-inch line. And it is still there yet, and anybody can look at it.” (Emphasis added).
It is well established that while neither a corporation nor an individual can divert water from its natural course 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 absorbent to retard its flow, it would deprive such owner of the use of his property.”
It is our opinion, and we so hold, that plaintiff’s evidence was insufficient to establish a diversion of surface water by defendant as alleged in the complaint.
However, plaintiff now asserts a right of recovery under a theory different from that arising on the pleadings.
It is now argued that the cause of plaintiff’s damage was the accumulation of the large volume of water on defendant’s 16.5 acre tract of land, and substantial authority is cited to support the general principle that every person may make reasonable use of his own property but may not use it in a manner which injures others. Conceding
arguendo
that under the Rules of Civil Procedure (G.S. 1A-1
et seq.),
effective 1 January 1970, defendant was not entitled to a directed verdict on the grounds of fatal variance between plaintiff’s allegations and proof (See Rule 15(b)), we are nevertheless of the opinion that the evidence fails to support a right of recovery under any theory. For instance, there was no evidence to show that the large accumulation of water was caused by any action on the part of defendant. It is true that the flow of water accelerated after the fill work was done on defendant’s land, and it was after the work had been completed when the large accumulations of water were noticed. But defendant had the right to accelerate the flow, and it was the duty of the owners of the lower estates to receive and allow passage of the increased flow of water so long as it had not been diverted from its natural course. In the case of
Mizzell v. McGowan,
120 N.C. 134, 26 S.E. 783, plaintiff sought recovery for flood damages to his property. The flooding was allegedly caused when defendants constructed drainage canals over their property, causing the waters to flow from their land with more force and rapidity than the natural flow. The Supreme Court held that it was error for the trial court to refuse to give unqualified jury instructions to the effect that defendants had the right to make canals for the purpose of draining their land of the water naturally falling thereon, although in so doing the flow of water was increased on plaintiff’s land. In speaking of the duties of a servient property owner the court stated:
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Geaham, J.
The only question on this appeal is whether the evidence, taken in the light most favorable to plaintiff and giving to it the benefit of every reasonable inference which can be drawn therefrom was sufficient to withstand defendant’s motion for a directed verdict. (See
Musgrave v. Mutual Savings and Loan Association,
filed in this court on this date).
The theory of plaintiff’s complaint is that defendant, through the grading of his property, diverted surface waters from their natural flow and caused them to seep through the ground at the railway right-of-way, saturating the soil on plaintiff’s land and causing the damages alleged. The parties do not disagree over the general principle that owners of land on the higher level cannot lawfully divert the surface water or interfere with its natural flow by artificial obstruction or device so as to injure the premises of a servient owner.
Bradley v. Texaco, Inc., 7 N.C.
App. 300, 172 S.E. 2d 87, and cases therein cited. However, we find no evidence here that there was a diversion of surface water. It is true that the fill work on defendant’s property increased the flow of water toward plaintiff’s land, but the water flowing across defendant’s land after the fill work flowed to the same place that the water flowed before the fill work. The testimony of George Sparks clearly established this fact and there was no evidence to the contrary. He stated:
“There has been no grading on the 16.5 acres. All we have done is fill. Before we did anything, the rain which fell on this property went under the railroad. And that means the area up at the apex, where Miller and First came along together, the rain which fell on it in the First Street area, all along up Miller street,
all the rain that fell on that 16.5 acre property, all the rain that fell on that property was funneled and drained through the 24-inch line.
Before we did any work out there on the Hanes property on the railroad side, they had a drainage come in from each way, and the drainage from First Street all of it settled right in that area at the 24-inch line and on the Hanes property. And that was a marshy area. You take you have got a drain coming from Miller Street that goes in there, on the same side of the 16 acres we are talking about, and then you also got a drain, a storm drain system, came from First Street back in there.
All draining water right down towards this 24-inch line. And that created a marshy area right at the mouth of the 24-inch line. It was that way when I started working on it. Nor many years back, I can’t state that, but it was that way when I started working on it in 1964. It is labeled 'marshy’ in the other diagram. The Hanes property formed sort of a dropping funnel from all sides down towards this 24-inch line.
*
I have shown there by my arrows on the other diagram that the drainage from the intersection of Miller Street and the railroad, in the southwestern corner of the 16 acre tract,
that drainage, before I did anything to the property, was down toward, and in the direction of, the 24-inch line under the railroad.
And the drainage from the corner, or the intersection of First Street and the railroad, in the southeastern corner, was in a westerly direction toward the 24-inch line. And it is still there yet, and anybody can look at it.” (Emphasis added).
It is well established that while neither a corporation nor an individual can divert water from its natural course 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 absorbent to retard its flow, it would deprive such owner of the use of his property.”
It is our opinion, and we so hold, that plaintiff’s evidence was insufficient to establish a diversion of surface water by defendant as alleged in the complaint.
However, plaintiff now asserts a right of recovery under a theory different from that arising on the pleadings.
It is now argued that the cause of plaintiff’s damage was the accumulation of the large volume of water on defendant’s 16.5 acre tract of land, and substantial authority is cited to support the general principle that every person may make reasonable use of his own property but may not use it in a manner which injures others. Conceding
arguendo
that under the Rules of Civil Procedure (G.S. 1A-1
et seq.),
effective 1 January 1970, defendant was not entitled to a directed verdict on the grounds of fatal variance between plaintiff’s allegations and proof (See Rule 15(b)), we are nevertheless of the opinion that the evidence fails to support a right of recovery under any theory. For instance, there was no evidence to show that the large accumulation of water was caused by any action on the part of defendant. It is true that the flow of water accelerated after the fill work was done on defendant’s land, and it was after the work had been completed when the large accumulations of water were noticed. But defendant had the right to accelerate the flow, and it was the duty of the owners of the lower estates to receive and allow passage of the increased flow of water so long as it had not been diverted from its natural course. In the case of
Mizzell v. McGowan,
120 N.C. 134, 26 S.E. 783, plaintiff sought recovery for flood damages to his property. The flooding was allegedly caused when defendants constructed drainage canals over their property, causing the waters to flow from their land with more force and rapidity than the natural flow. The Supreme Court held that it was error for the trial court to refuse to give unqualified jury instructions to the effect that defendants had the right to make canals for the purpose of draining their land of the water naturally falling thereon, although in so doing the flow of water was increased on plaintiff’s land. In speaking of the duties of a servient property owner the court stated:
“The surface of the earth is naturally uneven, with inequality of elevation. The upper and lower holdings are taken with a knowledge of these natural conditions, and the privilege or easement of the upper tenant to carry off the surface water in its natural course, under reasonable limitations, and the sub-serviency of the lower tenant to this easement are the natural incidents to the ownership of the soil. The lower surface is doomed by nature to bear this servitude to the superior and
must receive the water that falls on and floius from the latter.”
(Emphasis added).
The accumulation of the large amount of water, according to any interpretation of the evidence, resulted from the inability of the artificial conduits, none of which was located on defendant’s land, to receive and allow passage of the water. Plaintiff contends that this inability resulted from the fill material used by defendant washing into and stopping up the 24-inch pipe and the 15-inch terra cotta pipe. The only evidence directly relating to the cause of this stoppage was that of witness Sparks. He stated:
“At the time I cut into this 24-inch pipe underneath the railroad, there was mud in the pipe. It was completely filled up, blocked at this end.
# * *
When this 24-inch line was blocked in here (the witness pointed to the eastern portion of the 24-inch line), it just backed the water and the settlements all the way through the line. It couldn’t drain out because the 15-inch line was broke and the dirt fell in all the way through and blocked the line.”
If, as plaintiff’s witness Sparks testified, the breakage in the terra cotta pipe caused the stoppage and the resulting “ponding” of water on defendant’s property, defendant cannot be held responsible, absent a showing that in some manner he caused the terra cotta pipe to break. There is no such showing.
Affirmed.
MallaRd, C.J., and Morris, J., concur.