Rouse v. City of Kinston

123 S.E. 482, 188 N.C. 1, 35 A.L.R. 1203, 1924 N.C. LEXIS 1

• Court: Supreme Court of North Carolina
• Decided: June 21, 1924
• Status: Published

Opinion

Clarkson, J.

The defendant’s first assignment of error:

“The defendant moved the court to remand the case to the clerk, to the end that commissioners might be appointed as in condemnation proceedings, based on defendant’s answer, or to appoint the commissioners to view the premises and assess the damages, which the court declined to do.”

C. S., oh. 33, “Eminent Domain,” sec. 1706, is as follows:

“The right of eminent domain may, under the provisions of this chapter, be exercised for the purpose of constructing their roads, canals, lines of wires, or other works, which are authorized by law and which involve a public use or benefit, by the bodies politic, corporations, or persons following: . . .

“Section 2. Municipalities operating water systems and sewer systems and all water companies operating under charter from the State or license from municipalities, which may maintain public water supplies, for the purpose of acquiring and maintaining such supplies.”

We said in Parks v. Comrs., 186 N. C., 498: “Where the owner of land seeks to recover damages for the injury resulting from the location of a railroad on his land, he must pursue the remedy prescribed by the charter of the railroad company,4 as this statutory provision takes away by implication the common-law remedy by action of trespass on the case.” McIntire v. R. R., 67 N. C., 278. See S. v. Lyle, 100 N. C., 503; R. R. v. McCaskill, 94 N. C., 746; Allen v. R. R., 102 N. C., 381. Where the Legislature has prescribed a method of procedure the statute on the subject must ordinarily be followed. Proctor v. Comrs., 182 N. C., 59. Jones v. Comrs., 130 N. C., 452; Dargan v. R. R., 131 N. C., 623; Durham v. Rigsbee, 141 N. C., 128; Luther v. Comrs., 164 N. C., 241; Pharr v. Comrs., 165 N. C., 523; Shute v. Monroe, 187 N. C. 683.

In tbe present case tbe defendant denies tbe right of plaintiff to recover damage for tbe pipe line running along tbe State Highway No. 10, plaintiff having a fee-simple title to tbe land. In Teeter v. Tel. Co., 172 N. C., 785, it is said: “It is not denied by defendant that tbe telegraph line superimposed upon a railroad right of way is an additional burden which entitled tbe owner to compensation. Hodges v. Tel. Co., 133 N. C., 225; Phillips v. Tel. Co., 130 N. C., 513.” To tbe same effect is a water main. Defendant also denies tbe right of plaintiff to recover damages for tbe diversion of tbe percolating and flowing water in and under tbe lands of plaintiff.

C. S., 1716, is as follows:

“For tbe purpose of acquiring such title tbe corporation, or tbe owner of tbe land sought to be condemned, may present a petition to tbe clerk of tbe Superior Court of tbe county in which tbe real estate described in tbe petition is situated, praying for tbe appointment of commissioners of appraisal.”

Under tbe above section, tbe condemnation proceedings is “For tbe purpose of acquiring 'such title,’ ” etc. Tbe defendant denies that tbe plaintiff has a title that can be condemned except a short distance of tbe pipe line over bis land. Tbe defendant contended that tbe State Highway Commission bad given tbe plaintiff' tbe right to tbe use of tbe land for tbe underground water mains along its right of way. Tbe plaintiff bad tbe fee-simple title in tbe land.

¥e think tbe principle in Keener v. Asheville, 177 N. C., 4, applicable. It is there said: “In this view, tbe present case, we think, comes clearly within tbe recent decision of Mason v. Durham, 175 N. C., 638. There tbe county commissioners, in straightening a public road, bad taken a strip of plaintiff’s land. In an action to recover damages, defendants denied plaintiff’s ownership of tbe land and, generally, bis right of action, and on tbe bearing resisted recovery for tbe reason, among others, that plaintiff’s remedy was in petition to the board of commissioners, as tbe statute provided, and it was held, among other things: ‘The county board of commissioners, in acting upon a petition by tbe injured owner whose land bad been taken for road jmrposes, under a statute providing for tbe assessment of damages by this method, does so in an administrative capacity; .and where tbe board has taken and is using tbe land for such purposes, and the oivner has not folloiued the special method provided and brings his action in the Superior Court for his damages, the defendant's denial of plaintiff's ownership and its liability for the damages waives its right to insist that the statutory method should have been pursued by the plaintiff.’ ” (Italics ours.) Fleming v. Congleton, 177 N. C., 186. Tbe defendant denies plaintiff’s ownership to reasonable use of the percolating water and damages for pipe line along highway, the fee simple belonging to plaintiff.

This assignment cannot be sustained.

Defendant’s second assignment of error:

“The court erred in admitting evidence offered by the plaintiff tending to show the condition of the plaintiff’s farm from the time of the alleged trespass and injury until some fifty or sixty years prior thereto, including in this evidence statements as to health conditions on said farm and vicinity, complaints of tenants on account of water and as to health conditions, . . . and including agricultural conditions on the farms and ancient methods of farming, etc., . . . and did not confine these to the time of the alleged injury.” (The part of this assignment left out we do not think material.)

In Power Co. v. Power Co., 186 N. C., 183, Stacy, J., lays down the measure of compensation, as follows: “It is the accepted position here and elsewhere that in condemnation proceedings, where property is taken for public use, or a gwsi-public use, under the power of eminent domain, the measure of compensation to be awarded the owner is the fair market value, taking into consideration any and all uses or purposes to which the property is reasonably adapted and might, with reasonable probability, be applied. The test is the fair market value of the property. 10 R. C. L., 128; Nichols on Eminent Domain (2 ed.), sec. 445; Brown v. Power Co., 140 N. C., 333; R. R. v. McLean, 158 N. C., 498; Land Co. v. Traction Co., 162 N. C., 503. In Boom Co. v. Patterson, 98 U. S., 403, the rule is very clearly stated by Mr. Justice Field, as follows: ‘In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted — that is to say, what is it worth from its availability for valuable uses? Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to- use it and make it subserve the necessities or conveniences of life. Its capacity of being made thus available gives it a market value which can be readily estimated.’ To like effect are the decisions of this Court in R. R. v. Mfg. Co., 169 N. C., 156; R. R. v. Armfield, 167 N. C., 464; Teeter v. Telegraph Co., 172 N. C., 784.”

In Creighton v. Water Comrs., 143 N. C., 172, the witness was asked the character of meadow land before a dam was erected and water backed on such land. The answer was: “I have been working with it about thirty years, and it was certainly good meadow — just as fine as anybody’s meadow in the country.”

The witness -further gave the value of hay gotten from the land from year to year, although he said he had never weighed it but got four to six to eight two-horse loads.

Mr. Justice Moke says: “This testimony was offered and admitted to show the character and quality of the land appropriated, and was clearly competent.”

In Myers v. Charlotte, 146 N. C., 248, Chief Justice Clark, for a unanimous Court, says: “The value of land is largely a matter of opinion derived from a variety of circumstances,” and proceeds to illustrate his holding.

The court below, on this aspect of the case, charged the jury as follows: “I charge you that the measure of damages in respect to this second issue, in case you should answer the first issue ‘yes,’ is the difference in value between the land in question immediately prior to the digging of plaintiff’s wells and immediately subsequent thereto. That is to say, you will ascertain from this evidence the true market value of the land in question immediately before such wells were sunk, and you will then ascertain the true market value immediately after the wells were sunk. You will then deduct the latter figure from the first, and the remainder, will be your answer to the second issue.”

We think the charge in accordance with the law of this State. The evidence bearing on the question of compensation naturally takes a wide range — the surrounding circumstances and facts. From the record both sides were allowed latitude, and we can find no fact of prejudicial or reversible error.

In re Drainage District, 162 N. C., 129, it was said: “The other, that the court instructed the jury to take into consideration the health of the community instead of confining them to the question of health in so far as it affected the lands within the drainage district, cannot be sustained, for the court charged that the jury should consider ‘not only the increased facilities of the land for producing crops, but the benefit to the health of the people who'live in the district.’ ”

In Snell v. Chatham, 150 N. C., 736, Clark, C. J., said: “It is an old saying that ‘fragments of all the sciences are taken up in ashes of the law.’ It is not long since that our progressive brethren of the medical profession have discovered that one kind of mosquito (anopheles) causes malaria; that another (stegomyia) carries yellow fever, and another still spreads the Asiatic cholera; that house flies spread typhoid fever, that fleas on rats communicate the dreaded Bubonic plague, and lesser germs, as bacteria and bacilli, are the agents of other diseases. For thus do ‘the weak things of the world confound the things which are mighty.’ . 1 Cor. 27. Acting on these discoveries, under authority of law the stegomyia and yellow fever have been extirpated in Cuba and the Bubonic plague was stayed in San Francisco because mosquitoes and rats were systematically destroyed by the officers of the law. There is no reason that the plaintiff’s home shall not be freed of malaria by authority of a judgment based upon medical advice, especially as the parties agreed that such remedy (whatever the majority of the medical arbitrators should find it to be) should be entered as the judgment of the court.”

That stagnant water, in light of present-day medical opinion, is obnoxious to health, in this country, chiefly as it serves for a breeding-place for certain species of malaria-carrying mosquito, the only means at present known by which that disease is disseminated. The life and habitat of the mosquito- has received the most careful investigation at the hands of the United States health authorities. Yol. 23, 17 July, 1908, of the Public Health Report of the United States Marine Hospital Service. •

The benefit to the health of the people who lived on the plantation is more important than the increased facilities of the land for producing crops, and it is clearly competent in fixing the market value of the land to show before and after the artesian wells were sunk the condition of the health of the inhabitants who lived on the land. Good health can more easily create wealth. It gives strength and vigor to work.'

Defendant’s assignment of errors 3 and 52:

“The court erred in admitting evidence as to conversations between the plaintiff and board of aldermen and in permitting the introduction of plaintiff’s written proposal which was never accepted by the defendant, and in denying the defendant the privilege of showing that the plaintiff did agree for the defendant to cross his land pending the negotiation looking toward an adjustment by consent and in charging the jury that they might consider written proposals and evidence of efforts between the parties to adjust the matters as evidence of notice that the sinking of the wells and laying off the water mains would result in damage to plaintiff.”

The court below charged the jury: “In conclusion, I desire to call your attention to the fact that during the progress of this trial a controversy arose about the introduction of certain evidence as. to a contract between plaintiff and the defendant city of Kinston, a copy' of the proposed contract having been offered in evidence. I charge you that there never has been any contract between the city of Kinston and the plaintiff, Mr. Rouse. ... It was never accepted by the city and never completed nor executed. This evidence in respect to the contract and to the dealings between Mr. Eouse and the city of Kinston, including the proposal and his rejection, was offered for the sole purpose of showing, if it does show, that the city of Kinston had notice at the time of the sinking of the wells and the laying of the water main that such act would necessarily cause the plaintiff damages, and that is the only purpose for which this evidence was offered, and you cannot consider it in any other light.”

¥e think if error was committed it was not prejudicial. The court’s positive instruction, “You cannot consider it in any other light,” was all the defendant could ask.

These assignments cannot be sustained.

Assignment of error No. 4:

“The court erred in admitting evidence as to possible future uses and developments of plaintiff’s farm, based on the supposed continued flow of plaintiff’s private artesian wells, such as residential, industrial, and commercial uses, admitting opinions as to these and that such developments were impossible with city water, but were possible only with water from private artesian wells. Also that rates for outside water users would be raised or discontinued in the near future, including a letter that outside water rates had been raised since this controversy, and with this injecting private opinion as to value as distinguished from market value, allowing witness to say ‘would not give one-half for it.’ ” We have already discussed the rule of compensation.

We think the defendant has no reason to complain. The defendant’s witnesses went into this matter in every phase. For example, S. L. Lynch testified: “I own a piece of land on the edge of town between Kinston and the Caswell Lodge plantation of Mr. Eouse. I was raised on a farm, and am still a little interested in farming. I have been seeing the Caswell Lodge plantation for 25 or 30 years. Never been all over it, only riding the different roads to go by. I just about know the boundaries on the west of Mr. Hill and east of the Watford land. I think thirty or thirty-five thousand dollars would have been a good price for the farm in May, 1922, before the city sank its wells and laid its pipe line there. I think forty thousand dollars or more would be the value of the place after the deep wells were sunk by the city and the water connection made with Kinston across the land. In my opinion connecting the water supply of the city across the land increased the value of the land; it increased mine and I think it did theirs.”

This assignment cannot be sustained.'

Assignments of error Nos. 9 and 10:

“The court erred in refusing to submit the issue framed by defendant as to unlawful diversion of water from the plaintiff’s land and damages flowing therefrom, and in submitting the issue in the following form: 'Did tbe defendant sink upon its own land, adjacent to tbe plaintiff’s land, artesian wells of sucb strength and force as to unlawfully interfere with and absorb tbe underground percolating waters under tbe lands of tbe plaintiff, and thereby diminish, retard or destroy tbe flow of waters from tbe plaintiff’s wells, as alleged in tbe complaint?’ and in submitting an issue of damages designating sucb interference as an unlawful act.”

Assignments of error Nos. 13, 14, etc. :

“These assignments of error present tbe question as to tbe correctness of bis Honor’s view that tbe English rule of absolute ownership of land did not cover tbe absolute right to use underground percolating waters not contained in any well-defined underground stream according to tbe owner’s desire, but that sucb use was limited to tbe rule applied in some of tbe American courts and known as tbe 'reasonable user’ rule, limiting tbe owner tbe use of sucb percolating waters on tbe premises which contained tbe wells. Tbe various phases of tbe application of tbe trial court’s view are presented in tbe several exceptions noted in this group of assignments of error.”

Tbe above assignments of error set forth tbe main contention in this case. Tbe “reasonable user” of underground percolating water. Tbe issue was drawn and tbe contest waged over tbe doctrine of “reasonable use” of percolating water. Tbe authorities are conflicting. We are of tbe opinion that the reasonable use doctrine is supported by tbe greater weight of authorities in tbe United States and is tbe just and equitable rule to follow.

In 27 R. C. L., sec. 91, it is said, in part: “The law respecting tbe rights of property owners in percolating subterranean waters is of comparatively recent development. Tbe first English decision dealing with underground waters was rendered in 1840, and tbe case which has become recognized as tbe leading one on tbe subject was decided in 1843. According to tbe doctrine laid down by this and subsequent decisions, and known as tbe common-law rule, or English rule, water which percolates through tbe soil without any definite channel is regarded as much a part of tbe freehold through which it courses as tbe clays, sand, gravel and rocks found therein, and tbe owner, at least in tbe absence of malice, has tbe absolute right to intercept tbe water before it leaves bis premises and make whatever use of it be pleases, regardless of tbe effect that sucb use may have on a lower proprietor through whose land tbe water, in its natural course, was wont 'to filtrate and percolate. This rule was followed in nearly all of tbe early and in a number of tbe later American cases, in tbe absence of express contract and of positive authorized legislation, but the trend of modem opinion in this country is toward the ‘reasonable use’ rule.” (Italics ours.)

O. S., 970, is as follows: “All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.” This law was passed in 1778, -ch. 5, and from an examination is practically the exact language as C. S., 970.

The English decision referred to in R. C. L., supra, is Acton v. Blendell (1843), 12 Mees. & W., 324; 13 L. J. Exch., held that a landowner has no such right or interest in a subterranean water course as to enable him to maintain an action against a landowner who, in carrying on mining operations upon his own land in the usual manner, drains away the water from* the land of the first-mentioned owner and lays his well dry. This decision might well have been based upon the doctrine of reasonable use, but it was rested upon the absolute ownership on the part of the mine owner of all that lay beneath the surface of his land.

We do not think the English rule laid down in 1843 applicable and consonant or consistent with the just ideals of our Government. It is persuasive but not binding on this Court. Meeker v. East Orange, 77 N. J. L., 623 (1909), is a similar case as the instant one. The authorities are there carefully and thoroughly reviewed by Pitney, Chancellor (afterwards on the Supreme Court Bench of U. S.). He said, for a unanimous Court: “Upon the whole we are convinced, not only that the authority of the English cases are greatly weakened by the trend of modern decisions in this country, but that the reasoning upon which the doctrine of 'reasonable user’ rests is better supported upon general principles of law and more in consonance with natural justice and equity. We therefore adopt the latter doctrine. This does not prevent the proper use by any landowner of the percolating waters subjacent to his soil in agriculture, manufacturing, irrigation or otherwise, nor does it prevent any reasonable development, of his land by mining or the like, although the underground water of neighboring proprietors may thus be interfered with or diverted. But it does prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land when they are taken, if it results therefrom that the owner of the adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agricultural, pasturage or other legitimate uses.”

In Westphal v. City of N. Y., 69 N. E., 369; 177 N. Y., 143, it was held: “Tbe defendant, to supply a public need of its citizens, established the driven wells and pumping stations upon its own property; but the effect of their operation has been to withdraw, or to abstract, waters from the surrounding lands, to the injury of the plaintiffs. This was a natural effect and, as a consequential injury, there has been an invasion of the plaintiff’s property rights, which constituted a technical trespass, for the resultant damages of which a right of action accrued.”

In Midway Irrigation Co. v. Snake Creek Mining and Tel. Co., 271 Fed. Rep., 162, it was held: “The rule generally adopted by not only the courts of the arid States, but by most of the American courts, so that it may be said to be the American, as distinguished from the English rule, is that, while the owner of the land is entitled to appropriate subterranean or other waters accumulating on his land, which thereby becomes a part of the realty, he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land he owns, unconnected with the beneficial use of the land, especially if such use in excess of the reasonable and beneficial use is injurious to others, who have substantial rights to the water. Meeker v. City of East Orange, 77 N. J. Law, 623; 74 Atl., 379; 25 L. R. A. (N. S.), 465; 134 Am. St. Rep., 798; Smith v. Brooklyn, 18 App. Div., 340; 46 N. Y. Supp., 141, affirmed 160 N. Y., 359; 54 N. E., 787; 45 L. R. A., 664; Forbell v. New York, 164 N. Y., 522; 58 N. E., 644; 51 L. R. A., 695; 79 Am. St. Rep., 666; Bassett v. Salisbury, 43 N. H., 569; 82 Am. Dec., 179; Willis v. Perry, 92 Iowa, 297; 60 N. W., 727; 26 L. R. A., 124; Stillwater Co. v. Farmer, 89 Minn., 58; 93 N. W., 907; 60 L. R. A., 875; 99 Am. St. Rep., 541.”

In Erickson v. Crookston Waterworks P. and L. Co., 100 Minn., 481, it was held:

“The law of correlative rights applies to the use by adjoining landowners of waters drawn from an artesian basin. Such proprietors must so use their wells as to not unreasonably injure their neighbors.

“The circumstances of a particular case may render it illegal for such landowner to make merchandise of such supply in a particular manner.

“A water company acquired title to lands on which were wells flowing from an underground basin, the source of supply of a hundred or more similar wells on lands of adjoining owners in the natural use of the soil. It is held that the water company had no right to deprive them, or any of them, of water by use of artificial force in pumping the water in the artesian basin to a low level, in order that it might supply a neighboring community with water as merchandise.”

In Horne v. Utah Oil Refining Co., 59 Utah Rep., 279 (1921), Thurman, J., has gone into a most exhaustive discussion of the entire subject, and it was held in that ease that “The owner of land is entitled only to a reasonable use of the percolating waters under his land for purposes connected with the beneficial ownership or enjoyment of bis own land; and for the use of such water by an owner to be a ‘reasonable use/ especially in an artesian district, it should be limited first to bis just proportion according to bis surface area; and second, be should not be entitled even to this quantity to the injury of others similarly situated, unless it is reasonably necessary for the beneficial purposes to which be devotes the water; and the owner has no right to injure bis neighbors by an unreasonable diversion of the water for the purpose of sale or carriage to distant lands.”

The Horne case was affirmed in a decision by tbe same judge in Glover v. Utah Oil Refining Co. (1923), 218 Pac. Rep., 955.

This matter is also discussed at length by Temple, J., in the famous case of Katz v. Walkinshaw, 141 Cal., 116; 64 L. R. A., 236. Sustaining the doctrine of reasonable use, be says: “But this question was completely put at rest, so far as the State of New York is concerned, by the case of Forbell v. New York, 164 N. Y., 522; 51 L. R. A., 695; 79 Am. St. Rep., 666; 58 N. E., 644. It was a suit by another plaintiff to restrain the same operations considered in Smith v. Brooklyn. Here there was no visible stream or pond on plaintiff’s l'and. His injury was merely that the level of the water beld in the soil was lowered, to his injury. In stating the case the Court said: ‘The defendant (city) makes merchandise of the large quantity of water which it draws from the wells that it has sunk upon its two acres of land. The plaintiff does not complain that any surface stream or pond or body of water upon his land is thereby affected, but does complain, and the courts below have found, that the defendant exhausts his land of its accustomed and natural supply of underground or subsurface water, and thus prevents him from growing upon it the crops to which the land was and is peculiarly adapted, or destroys sucb crops after they are grown or partly grown.’ This statement shows a striking similarity of the issues made in that case to those involved here. The court proceeds to state the usual doctrine in regard to percolating water, and approves the doctrine for the cases in which it is properly applicable. No doubt the land proprietor owns the water which is parcel of his land, and may use it as be pleases, regard being bad to the rights of others. It is not unreasonable that be should dig wells in order to have the fullest enjoyment. and usefulness of his estate, or for pleasure, trade, or whatever else the land as land may serve. ‘But to fit it up with wells and pumps of sucb pervasive and potential reach that from their base the defendant can tap the water stored in' the plaintiff’s land, and in all the region there about, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendants and its customers, unreasonable as to the plaintiff and the others, whose lands are thus clandestinely sapped, and their value impaired.’ ”

The Walkinshaw case was affirmed after a rehearing, Shaw, J. (64 L. R. A., 250), said: “It is clear, also, that the difficulties arising from the scarcity of water in this country are by no .means ended but, on the contrary, are- probably just beginning. The application of the rule contended for by the defendant will tend to aggravate these difficulties rather than to solve them. Traced to its true foundation, the rule is simply this, ‘That, owing to the difficulties the courts will meet in securing persons from the infliction of great wrong and injustice by the diversion of percolating water if any property right in such water is recognized, the task must be abandoned as impossible, and those who have valuable property acquired by and dependent.on the use of such water must be left to their own resources to secure protection for their property from the attacks of their more powerful neighbors, and failing in this, must suffer irretrievable loss; that' might is the only protection.

‘The good old rule

Sufficéüi them, the simple plan,

That they should take who have the power,

And they should keep who can.’

“The field is open for exploitation to every man who covets the possession of another, or the water which sustains and preserves them, and he is at liberty to take that water if he has the means to do so, and no law will prevent or interfere with him, or preserve his victim from the attack. The' difficulties to be encountered must be insurmountable to justify the adoption or continuance of a rule which brings about such consequences.”

The facts in the Walkinshaw case, supra, were: “The action was brought to enjoin defendant from drawing off and diverting water from an artesian belt, which is in part on or under the premises of plaintiffs, and to the water of which they have sunk wells, thereby causing the water to rise and flow upon the premises of plaintiffs, and which they aver had constantly so flowed for twenty years before the wrong complained of was committed by defendant. The water is necessary for domestic purposes and for irrigating the lands of plaintiffs, upon which there are growing trees, vines, shrubbery, and other plants, which are of great value to plaintiffs. All of said plants will perish, and plaintiffs will be greatly and irreparably injured if the defendant is allowed to divert the water. These facts are admitted, and further, that defendant is diverting the water 'for sale, to be used on lands of others distant from the saturated belt from which the artesian water is derived.”

Mr. Weil in bis work on Water Eights in the Western States, Vol. 2 (3 ed.), in secs. 1039 and 1040, briefly defines and discusses the “English Rule,” both as to percolating water and water courses, and carefully makes the distinction. In.section 1041 the “American Rule” is referred to as a modification of the English rule, and reference is made to list of cases from 18 American jurisdictions where the English rule “has been either expressly departed from or doubted in one form or another.” The cases' are cited in the note to section 1066, and are from the following States: California, Colorado, Delaware, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, New York, West Virginia, and also from the United States Supreme Court.

The contra view is held in many states. In Ohio and Pennsylvania the courts have ruled that where the subterranean supply of water is stopped by the lawful act of an adjoining landowner, the resulting injury is damnum absque injuria. See Appeal by Lybe, 106 Pa., 626, 51 Am. Rep., 542; Frazier v. Brown, 12 Ohio St., 294; Elster v. City of Springfield, 49 Ohio St., 82, 30 N. E., 274.

To the same effect are the cases of Hunte v. Laramie, 181 Pac., 137 (a Wyoming case); Henninger v. McGinnis, 108 S. E., 671 (a Virginia case decided in September, 1921); Huber v. Merkel, 117 Wis., 355; Chatifield v. Wilson, 28 Vt., 49; Houston & Texas Central Railroad Co. v. East, 98 Tex. Rep., 146; Chase v. Silverstone, 62 Maine, 175.

An interesting discussion of “Reasonable use of percolating water in the West” is to be found in Harvard Law Review, March, 1924, p. 602 (Vol. 37, No. 5), et seq.

The facts in the instant case succinctly are: The plaintiff purchased 581 acres of land in 1914 — 281 acres cleared land and balance bottom land. The cleared land was good for all kinds of farming, trucking, dairying, etc.; considerable frontage of his land was on the State Central Highway No. 10, that could be utilized for homes. The land was about two miles from, the thriving city of Kinston. When purchased, the houses on the land had become almost worthless and in decay. The farmTand had gone to waste; impossible to get white or colored people to live in the houses, or farm the land, on account of the bad surface water in shallow wells that the tenants had to drink. The place was sickly; no tenants could be obtained, on account of bad water — surface wells. The plaintiff had had experience — one of the promoters of the idea of artesian wells for water in that section of the State. He had found from experience that from the deep artesian wells could' be obtained clear, pure and wholesome water, fit for domestic purposes^ for man and beast. He sunk artesian wells, at a considerable cost, and obtained a splendid supply of pure and wholesome water, fit for domes tic use. One well on the highway was estimated to run 75 to 100 gallons per minute, and the flow was reduced to 8 gallons a minute after the city wells were sunk. The water made the land adaptable for irrigation. He rebuilt the Oaswell Lodge, or Red House, and built numerous tenant houses. He put artesian water in them. He built barns, ran a dairy, built a silo, got a herd of cattle, and was able, on account of the good and wholesome water, to get the most efficient tenants and all he needed. He painted the houses, improved the land and brought it up to a high state of cultivation, and it became a very valuable plantation, producing fine crops. He spent large sums of money to do this.

From the testimony of witnesses, after the artesian wells were dug he made of a desert place an oasis.

“And the desert shall rejoice and blossom as a rose.”

In 1922 the city of Kinston, a thriving, up-to-date, modern city, was in need of more water to meet the demand of an increasing population. It needed pure and wholesome water for domestic purposes, drinking, sanitary, and fire protection. It was known to the officials of Kinston that the deep artesian wells on the plaintiff’s plantation had produced pure and wholesome water. It was no experiment, no useless digging by the city, at large cost, to hunt the subsurface, percolating water. It was found by plaintiff on his plantation in a large quantity. The city of Kinston was unable, for causes not clear in the record, to buy or condemn, as they had the right to do, and pay just compensation for the subsurface percolating water on plaintiff’s land. They purchased a half-acre of land for $250.00 from an adjoining landowner, established an auxiliary water station, and sunk artesian wells — three 10 inches in diameter, one 158 feet deep, another 178, and another 608 feet deep. The wells are about 75 feet apart and several hundred yards from plaintiff’s wells. The water from these wells comes from its own force into the reservoir; it is then pumped into the city mains from the reservoir, and sold to the dwellers in Kinston, and used for drinking and sanitary purposes, fire protection, etc. Since the city sunk its wells, the plaintiff’s wells have gradually diminished and have practically dried up, and it has left plaintiff without any available water supply that can be used, except what is available from the city’s mains. The Highway well is so reduced to an amount inadequate to supply the tenant residence near it. The cessation of the flow in plaintiff’s wells was cotemporaneous with the city’s sinking the three 10-inch wells. As a result, plaintiff’s wells are practically worthless and dry. That on account of the city of Kinston taking the water, the farm is returning to its former dilapidated condition, and its value has' been materially decreased. It is difficult for plaintiff now to get tenants. His dairy bas been destroyed.

Under tbe English' rule promulgated in 1843 (Acton v. Blundell, supra), plaintiff would have no cause of action, under the facts in this case. Taking the subterranean or percolating water by the defendant would be damnum absque injuria. It is contended by defendant that the rule applies of cujus est solum, ejus esi usque as coelum et ad inferos. To whomsoever the soil belongs, he owns also to the sky and to the depths.' This is a maxim of the common law. This principle allows the landowner to take soil, rock, or anything he desires from the land. He can build the Tower of Babel, “whose top may reach unto Heaven,” and he can go to the center of the earth, and all above and below belongs to him. But this rule is limited by another well-known doctrine or maxim of the common law, '"Sic utere tuo ut alienum non Icedas." So use your own as not to injure another’s property.

Water is a fluid, mobile, unstable. “Unstable as water, thou shall not excel.” The human body is composed of 70 per cent water. We find in Dalton’s Human Physiology (7 ed.), p. 36: “According to the best calculations, water constitutes in the human subject about 70 percent of the entire bodily weight. . •. . In accordance with the results formerly obtained by Barral — that, for a healthy adult man, the average quantity of water introduced into the system is about 2,000 grammes per day.” It is necessary to sustain human life. It is needful in agriculture and industry. Percolating water being mobile and unstable, and being so important to health, agriculture and industry, we think the “reasonable-use” doctrine is correct in principle. Such an important factor in the human body, and useful for other purposes, should not be monopolized, as under the English rule, but the American rule of reason should prevail.

Law is considered the perfection of reason and founded on justice and common sense. It would be contrary to the administration of justice and right to construe the law, in a case of this kind, which would work injustice and wrong, to be' that the plaintiff had no remedy. The defendant realized that this percolating water, in law and morals, could not be taken and sold as a commodity to the injury and detriment of plaintiff^ without just compensation. In its answer it says, “and it has continuously been ready, able and willing to negotiate with the plaintiff as to a money compensation.”

We thiiik the American rule, adopted in most of the States -where this question has arisen, the “reasonable use” of percolating water, the correct rule. The beauty of the common law is that it is elastic and at all times fitted to meet modern life and changing conditions when consonant with right and justice. We think there is no error in the charge of tbe court below, as follows: “This rule does not prevent the private use by any landowner of percolating waters subjacent to bis soil, in manufacturing, agriculture, irrigation, or otherwise; nor does it prevent any reasonable development of his land by mining, or the like, although by such use the underground percolating waters of his neighbor may be thus interfered with or diverted; but it does prevent the withdrawal of underground waters for distribution or sale, for uses not connected with any beneficial ownership or enjoyment of the land from which they are taken, if it thereby follows that the owner of adjacent lands is interfered with in his right to the reasonable use of subsurface water upon his own land, or if his wells, springs or streams are thereby materially diminished in flow or his land rendered less valuable for agriculture, pasturage, or for legitimate uses. ... I therefore charge you that, in the absence of contract or legislative enactment, whatever is reasonable for the owner to do with his subsurface water, he may do. He may make the most of it that he reasonably can. It is not unreasonable for him to dig wells and take therefrom all of the waters that he needs in order to get the fullest enjoyment and usefulness from his land, for the purposes of abode, productiveness of the soil, or manufacture, or whatever else the land is capable of. He may consume it at will; but, to fit it up with wells and pumps of such pervasive and potential reach that from their base he can tap the waters stored in the lands of others, and thus lead them to his own land, and by merchandising it, prevent its return, to the injury of adjoining landowners, is an unreasonable use of the soil, and in such event the injured neighbor may bring his action for damages.”

In Smith v. Morganton, 187 N. C., p. 802, it was said: “The doctrine finds support in our decisions which hold that a riparian proprietor is entitled to the natural flow of a stream running through or along his land in its accustomed channel, undiminished in quantity and unimpaired in quality, except as may be occasioned by the reasonable use of the water by other like proprietors.” See cases cited.

Under the “Eminent Domain” chapter 33, supra, the municipalities of the State have a right, under a clear interpretation of the law, to acquire all necessary land and water rights by purchase or condemnation (paying just compensation) or otherwise, for the public use or benefit of such body politic.

This is the first time this question has been to this Court. It is of great importance to the municipalities and landowners of the State. It deals with property rights and health, and we have gone into the matter more extensively than usual.

We have gone carefully over the charge of the court below, and commend it for its fairness. The record shows that the charge was clear and accurate, giving tbe law applicable to tbe facts in tbe ease and tbe contentions of tbe parties. We bave gone over tbe prayers for instructions and tbe other assignments of error, and can find no prejudicial or reversible error.

We bave considered only tbe main and material assignments of error.

No error.

Stacy, J., dissents.