Sutherland v. Hickory Nut Corp.

209 S.E.2d 301, 23 N.C. App. 434, 1974 N.C. App. LEXIS 2113

Opinion

CAMPBELL, Judge.

In North Carolina, “[w]e follow the ‘Civil-Law Rule,’ which recognizes a natural servitude of natural drainage as between adjoining lands, so that the lower owner must accept the surface water which naturally drains onto his land but, on the other hand, the upper owner cannot change the natural drainage so as to increase the natural burden.” Midgett v. Highway Commission, 260 N.C. 241, 244, 132 S.E. 2d 599, 603 (1963). “While . . . the lower landowner is required to receive surface waters from higher lands when they flow naturally therefrom, he is not required to receive from the higher land dirt and rocks, or other materials, which have been piled thereon by the upper landowner and which, in the natural condition of the lands, would not be carried by the normal flow of surface waters from the upper to the lower tracts.” Ayers v. Tomrich Corp., 17 N.C. App. 263, 267, 193 S.E. 2d 764, 767 (1972).

The evidence established that the defendant changed the natural drainage of the land by cutting into the mountain and piling the excess mud and dirt on the downhill side of the road. This alteration of the topography of the land caused mud and silt to be washed by surface waters in a manner different than had naturally existed prior to that time. In fact, the mud and silt in the stream was directly traced to the defendant’s construction at a time when it was actually causing damage.

In the instant case the evidence was sufficient to support the findings of fact made by the trial judge and those findings of fact support the conclusions of law and the judgment.

Affirmed.

Judges Britt and Vaughn concur.