Avery, J.:
When this case was brought up by the defendant (106 N. C, 718) on' appeal from the refusal of the Court below to quash the warrant, it was settled that the ordinance was valid, the town having authority, both under the general statute
(The Code,
§ 3820) and the charter (Pr. Acts, 1885, ch. 40, §56), to make and enforce it. The question whether such an obstruction of the flow of water from the street is indictable as a public nuisance, and cognizable in the Superior Court, is, therefore, no longer an open one.
The statute
(The Code,
3803) makes it the duty of the town, through its regularly constituted authorities, to “provide for keeping in proper repair the streets and bridges of the town, in the manner and to the extent they may deem best.” The commissioners of the town, during the year 1878, thought it would promote the convenience and sub-serve the best interests of the public to raise the level of the street adjacent to the premises of the defendant, on which he placed the obstruction complained of, and on which he now lives, one foot higher by filling in earth; but by doing so the water that gathered just south of the street so repaired (Walnut) was, as the defendant insisted and proposed to prove, diverted from its natural course, and) instead of flowing across the street to the north, was forced into his lot, and ponded to the depth of a foot on a portion of it before it could be made to pass into a little drain, and across his premises to a branch on a parallel street further south.
We must assume that the authorities of the town acted in good faith, if not in obedience to the mandatory requirement
of the statute, in changing the level of Walnut street, and made only proper repairs in that highway. They were liable to indictment for failure to keep it in such condition that it would be passable and safe. ■ Bishop on Cont. Law, §§ 970 to 974.
The town had an unquestioned right-of-way in Walnut street when it is alleged that the How of the water was changed. How or when the easement was acquired does not appear, but the existence of it is admitted. If the town •had widened instead of elevating the street, the additional land needed for that purpose could not have been taken for public use without condemnation, in some manner provided ■by law, and giving just compensation to the owner. Under the charter now in force in Statesville (Laws 1885, ch. 40, § 41), the mode of ascertaining damages is provided and specifically pointed out.
In a late exhaustive work on Eminent Domain, by Lewis (§ 221), the author says that the people of Illinois, in revising their Constitution in 1870, inserted a new and important provision — that “ private property should not be taken or damaged for public use without just compensation.” He says further: “Every olher State which has revised its Constitution since 1870, except North Carolina, which never had any provision on the subject, has followed the example set by Illinois by adding the word ‘ damaged,’ or its equivalent, to the provision in question,” viz., to the pre-existing prohibition against taking without just compensation. The fifth amendment of the Constitution of the United States was held, at an early day, to be a limitation on the power of the Federal and not the State government.
Barrow
v.
Mayor of Baltimore,
7 Peters, 243.
Judge GastoN, in
Railroad
v.
Davis.
2 Dev. & Bat., 460, intimated strongly that section 17, Art. 1 of the Constitution, should be construed as prohibiting the appropriation of private property for public purposes without payment of a fair
equivalent; but the statute discussed in that case provided fully for ascertaining and paying the damage of the landowner for the land appropriated, and hence the point was not decided. Our Constitution has never contained, however, like most of the other State Constitutions, such an express inhibition as that imposed on the Congress of the United States, against taking private property without just compensation. Where the word “damaged,” or some word of similar import, has been added to “taken,” in the organic law of various States, the Courts have held that the effect was to give to the owner óf the fee in the street the right to additional damage when the streets are elevated. Lewis on Em. Dom., §§ 222 to 224 and 232.
But while our organic law may be construed to prohibit “taking,” its language is not broad enough to apply in all cases where, as an incident to the construction or change of a street, an owmer of adjacent land is injured by diverting the water and flooding his premises or by rendering his building insecure. No provision is made in the general road laws, or in railroad charters or in acts incorporating towns, as a rule, for compensating land-owners who are not owners of the fee-simple title to any part of the highway, railroad or street, or whose lands do not abut immediately on them, because of injuries inflicted incidentally on land other than that appropriated or contiguous to it, the corporation can, ordinarily, be made to answer in damages. If it were necessary to determine in this case whether the defendant’s damage, on account of ponding water on his land, could be recovered only in repeated actions against the city, or w'hether it is deemed, in the absence of any special provision in our statutes or constitution in reference to
injury,
as distinguished from
taking,
to have been assessed when the street was opened, it might become important, if not essential, to first ascertain whether the flooding was caused by failure of the town to furnish a sufficient outlet
by a natural or artificial drain for a stream, or for the escape of the accumulated surface-water, and also, whether the defendant, or those under whom he claims, owned any part of the highway when it was condemned, granted or dedicated.
Railroad
v.
Wicker,
74 N. C., 227;
Brown
v.
Railroad,
83 N. C , 128;
Bridgers
v.
Dill,
97 N. C., 222;
Fore
v.
Railroad,
101 N. C., 527;
Emry
v.
Railroad,
102 N. C., 234;
Murphy
v.
City of Chicago,
29 Ill., 279.
But we do not think it essential that we should determine what the remedy of defendant is, if he
has
a remedy. The ordinance has been declared valid. It prohibits the obstruction of a city drain. The defendant admits that he obstructed the flow of the water when it entered his lot.
Free access — add to your briefcase to read the full text and ask questions with AI
Avery, J.:
When this case was brought up by the defendant (106 N. C, 718) on' appeal from the refusal of the Court below to quash the warrant, it was settled that the ordinance was valid, the town having authority, both under the general statute
(The Code,
§ 3820) and the charter (Pr. Acts, 1885, ch. 40, §56), to make and enforce it. The question whether such an obstruction of the flow of water from the street is indictable as a public nuisance, and cognizable in the Superior Court, is, therefore, no longer an open one.
The statute
(The Code,
3803) makes it the duty of the town, through its regularly constituted authorities, to “provide for keeping in proper repair the streets and bridges of the town, in the manner and to the extent they may deem best.” The commissioners of the town, during the year 1878, thought it would promote the convenience and sub-serve the best interests of the public to raise the level of the street adjacent to the premises of the defendant, on which he placed the obstruction complained of, and on which he now lives, one foot higher by filling in earth; but by doing so the water that gathered just south of the street so repaired (Walnut) was, as the defendant insisted and proposed to prove, diverted from its natural course, and) instead of flowing across the street to the north, was forced into his lot, and ponded to the depth of a foot on a portion of it before it could be made to pass into a little drain, and across his premises to a branch on a parallel street further south.
We must assume that the authorities of the town acted in good faith, if not in obedience to the mandatory requirement
of the statute, in changing the level of Walnut street, and made only proper repairs in that highway. They were liable to indictment for failure to keep it in such condition that it would be passable and safe. ■ Bishop on Cont. Law, §§ 970 to 974.
The town had an unquestioned right-of-way in Walnut street when it is alleged that the How of the water was changed. How or when the easement was acquired does not appear, but the existence of it is admitted. If the town •had widened instead of elevating the street, the additional land needed for that purpose could not have been taken for public use without condemnation, in some manner provided ■by law, and giving just compensation to the owner. Under the charter now in force in Statesville (Laws 1885, ch. 40, § 41), the mode of ascertaining damages is provided and specifically pointed out.
In a late exhaustive work on Eminent Domain, by Lewis (§ 221), the author says that the people of Illinois, in revising their Constitution in 1870, inserted a new and important provision — that “ private property should not be taken or damaged for public use without just compensation.” He says further: “Every olher State which has revised its Constitution since 1870, except North Carolina, which never had any provision on the subject, has followed the example set by Illinois by adding the word ‘ damaged,’ or its equivalent, to the provision in question,” viz., to the pre-existing prohibition against taking without just compensation. The fifth amendment of the Constitution of the United States was held, at an early day, to be a limitation on the power of the Federal and not the State government.
Barrow
v.
Mayor of Baltimore,
7 Peters, 243.
Judge GastoN, in
Railroad
v.
Davis.
2 Dev. & Bat., 460, intimated strongly that section 17, Art. 1 of the Constitution, should be construed as prohibiting the appropriation of private property for public purposes without payment of a fair
equivalent; but the statute discussed in that case provided fully for ascertaining and paying the damage of the landowner for the land appropriated, and hence the point was not decided. Our Constitution has never contained, however, like most of the other State Constitutions, such an express inhibition as that imposed on the Congress of the United States, against taking private property without just compensation. Where the word “damaged,” or some word of similar import, has been added to “taken,” in the organic law of various States, the Courts have held that the effect was to give to the owner óf the fee in the street the right to additional damage when the streets are elevated. Lewis on Em. Dom., §§ 222 to 224 and 232.
But while our organic law may be construed to prohibit “taking,” its language is not broad enough to apply in all cases where, as an incident to the construction or change of a street, an owmer of adjacent land is injured by diverting the water and flooding his premises or by rendering his building insecure. No provision is made in the general road laws, or in railroad charters or in acts incorporating towns, as a rule, for compensating land-owners who are not owners of the fee-simple title to any part of the highway, railroad or street, or whose lands do not abut immediately on them, because of injuries inflicted incidentally on land other than that appropriated or contiguous to it, the corporation can, ordinarily, be made to answer in damages. If it were necessary to determine in this case whether the defendant’s damage, on account of ponding water on his land, could be recovered only in repeated actions against the city, or w'hether it is deemed, in the absence of any special provision in our statutes or constitution in reference to
injury,
as distinguished from
taking,
to have been assessed when the street was opened, it might become important, if not essential, to first ascertain whether the flooding was caused by failure of the town to furnish a sufficient outlet
by a natural or artificial drain for a stream, or for the escape of the accumulated surface-water, and also, whether the defendant, or those under whom he claims, owned any part of the highway when it was condemned, granted or dedicated.
Railroad
v.
Wicker,
74 N. C., 227;
Brown
v.
Railroad,
83 N. C , 128;
Bridgers
v.
Dill,
97 N. C., 222;
Fore
v.
Railroad,
101 N. C., 527;
Emry
v.
Railroad,
102 N. C., 234;
Murphy
v.
City of Chicago,
29 Ill., 279.
But we do not think it essential that we should determine what the remedy of defendant is, if he
has
a remedy. The ordinance has been declared valid. It prohibits the obstruction of a city drain. The defendant admits that he obstructed the flow of the water when it entered his lot.
The Judge below, in his charge, made the guilt of the defendant depend upon the preliminary finding by the jury that the obstruction was placed in a drain or ditch used by the city. It is not material, therefore, to know whether an action will lie or not, since the city was shown to be using the ditch. The defendant cannot, without making himself liable to indictment, take the law in his own hands, declare the flooding a nuisance, and abate it in such manner as is calculated to render the street impassable, even if it be conceded that the water was diverted and made to flow into the ditch for the first time in 1878, and that the way for the ditch was not condemned nor compensation made for prospective damage to the owner of the land, and that no easement has yet been acquired by the town in the water-way.
Owings
v.
Jones,
9 Md., 108;
Nayes
v.
Shepherd,
30 Me., 173. “No person, not even the adjacent owner, whether the fee of the street contiguous to his lot be in himself or the public, has the right To do any act which renders the use of the street hazardous or less secure than it was left by the municipal authorities.” 2 Dil. Mun. Corp., § 1032.
The defendant had no right, by obstructing a drain actually used to carry off the water, to flood the streets, and was liable to respond in damages for any injury caused by creating such a nuisance. 1 Dillon Mun. Corp., §379; 2
ibid,
1032
So far from having the right to abate what he considered a nuisance by closing the ditch, the defendant, if in backing the water upon the street he made the highway unsafe, subjected himself to certain liability to indictment and a contingent responsibility in damages for injuries to others caused by his act.
It is not necessary to discuss
seriatim
the exceptions of the defendant. The principles we have laid down cover all of them.
There was no error in excluding the testimony, for the refusal to admit which exceptions were entered; nor is there sufficient ground for sustaining any of the exceptions to the charge that have been assigned as error.
Affirmed.