{
  "id": 8555529,
  "name": "DIZE AWNING AND TENT COMPANY v. CITY OF WINSTON-SALEM",
  "name_abbreviation": "Dize Awning & Tent Co. v. City of Winston-Salem",
  "decision_date": "1976-05-05",
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  "casebody": {
    "judges": [
      "Judges Parker and Clark concur."
    ],
    "parties": [
      "DIZE AWNING AND TENT COMPANY v. CITY OF WINSTON-SALEM"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nDid the trial court err in allowing defendant\u2019s motion for directed verdict and dismissing the action ? We hold that it did not.\nFirst, we respond to plaintiff\u2019s argument that the Supreme Court opinion established the law of this case, that plaintiff presented evidence substantially as alleged in its pleadings, therefore, it was entitled to have the jury pass upon its cause. We reject this argument.\nThe Supreme Court opinion, page 720, contains the following paragraph:\n\u201cAnd now, turning to the plaintiff\u2019s position, construed most favorably to it, the plaintiff alleges that by the City\u2019s action in removing a 36-inch pipe or culvert, which was guarded by the use of covers, grilles, and other protective devices, and replacing it with a larger one, without grilles or other devices to prevent tires and other large debris from entering it, it created a condition that would flood plaintiff\u2019s property when they could not be accommodated by plaintiff\u2019s smaller culverts. In blocking the plaintiff\u2019s culverts they would naturally cause water to pond and flood plaintiff\u2019s property, which plaintiff alleged resulted in $75,000 damage.\u201d (Emphasis added.)\nWe think the decision in the former appeal turned on plaintiff\u2019s allegations at that time that before the culvert was replaced it was guarded at the east end by grilles and other protective devices, but after the culvert was replaced, defendant failed to reinstall grilles or other protective devices. In its amendment to the complaint, filed on 1 November 1968, subsequent to the Supreme Court decision, plaintiff, among other things, alleged the following: \u201cThe plaintiff, in paragraph 9 above, does not intend to allege that any covers or grilles were located at the eastern end of the old culvert under South Main Street. ...\u201d\nIn view of the quoted amendment, and plaintiff\u2019s evidence in conformity therewith, we think our present position in applying the law to the instant case is different from the position confronting the Supreme Court on the former appeal.\nThe law appears well settled in this jurisdiction: each of the lower parcels of land along natural drainways is servient to those on the higher level in that each is required to receive and allow the unimpeded passage of surface water from the higher level. Midgett v. Hwy. Comm\u2019n, 260 N.C. 241, 132 S.E. 2d 599 (1963) ; J. Webster, Real Estate Law in North Carolina \u00a7 320 (1971). This is the civil law rule long prevailing in this State. Davis v. Cahoon, 5 N.C. App. 46, 168 S.E. 2d 70 (1969) ; cert. denied, 279 N.C. 348, 182 S.E. 2d 580 (1971). See, cf., 1A G. Thompson, Commentaries on Modern Law of Real Rroperty, \u00a7 266 (1964) (common law rule). Less emphasis is placed on the existence of well defined surface channels than on a treatment of surface water as a resource. It is designed to maximize the beneficial usage of such waters. As stated by our Supreme Court in an early decision:\n\u201c . . . 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 subserviency of the lower tenants 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 flows from the latter.\u201d Mizell v. McGowan, 120 N.C. 134, 137, 26 S.E. 783, 784 (1896).\nA second rule is that one property owner may not divert water or cause it to flow onto the land of another in a manner different from the natural course in which it would normally flow, so as to injure the other owner\u2019s land. Should a lower landowner divert, dam or impound the natural flow of surface waters so as to cast them back upon and damage the upper landowner, then he may be subject to liability in an action for damages. Braswell v. Hwy. Comm\u2019s, 250 N.C. 508, 108 S.E. 2d 912 (1959).\nThis is subject to corollary, that while the land owner may not divert surface waters from their natural course, he may accelerate and increase the flow of such water from his lands, provided the course remains unchanged. Thus surface waters may be drained into a natural drainway without liability to lower property owners for damage caused to lands along the lower drainway as a result of increased flow of a natural stream. Barcliff v. R. R., 168 N.C. 268, 84 S.E. 290 (1915).\nWe feel that these principles, applied to plaintiff\u2019s evidence thoroughly substantiate the trial judge\u2019s decision to grant defendant\u2019s motion for directed verdict. Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974). See generally, W. Shuford, North Carolina Practice and Procedure \u00a7 50-10 (1975). At no point during plaintiff\u2019s sixty odd years of occupation and ownership did the city ever maintain more than a mere culvert. This was a valid exercise of the municipal police power, authorized under present G.S. 160A-297 and G.S. 160A-311 et seq. See e.g., former G.S. 160-222 (1964), repealed N. C. Session Laws, c. 698, s. 2 (1971). During this same period plaintiff sought to encase or reroute the course and flow of South Creek. Defendant acted only to increase or accelerate the volume and flow of water under its street, obviously in order to alleviate flooding endangering property owners east of South Main Street. At no point did defendant ever divert the course of South Creek to the detriment of lower property owners including plaintiff.\nThat defendant selected a design choice for construction of a replacement culvert, which exposed the inadequacy of plaintiff\u2019s private drain system for coping with increased flow from the South Creek watershed is no basis upon which to impose liability on defendant. Given a number of alternatives from which to choose, and without more than plaintiff\u2019s evidence of negligence, the judiciary will not question or second guess the wisdom of local municipal officials in selecting or not selecting a particular design rather than one of those posited by plaintiff\u2019s expert at trial. State v. Stowe, 190 N.C. 79, 128 S.E. 481 (1925) ; Clark\u2019s v. West, 268 N.C. 527, 151 S.E. 2d 5 (1966) ; State v. Camp, 286 N.C. 148, 209 S.E. 2d 754 (1974). See generally, 6 E. McQuillin, Municipal Corporations \u00a7\u00a7 24.02, 24.30 (3d rev. ed. 1969). Plaintiff has failed to come forward with any evidence from which to infer either abuse of discretion or an invalid exercise of municipal police power. So long as defendant\u2019s conduct remained within bounds of its right to accelerate or increase rate of flow under the easement of servitude, there is no basis for negligence liability.\nFor the reasons stated, the judgment appealed from is\nAffirmed.\nJudges Parker and Clark concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Deal, Hutchins and Minor, by William Kearns Davis, for 'plaintiff appellant.",
      "Womble, Carlyle, Sandridge and Rice, by William F. Womble and Roddy M. Lig\u00f3n, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "DIZE AWNING AND TENT COMPANY v. CITY OF WINSTON-SALEM\nNo. 7521SC987\n(Filed 5 May 1976)\n1. Appeal and Error \u00a7 68\u2014 prior Supreme Court opinion \u2014 amendment of complaint \u2014 law of the case\nIn this action to recover for flood damage allegedly caused by defendant city\u2019s negligence, a prior Supreme Court opinion did not constitute the law of the case as to the sufficiency of plaintiff\u2019s evidence to go to the jury where plaintiff changed its position as to defendant\u2019s acts of negligence in an amendment to its complaint after the Supreme Court opinion was filed and presented evidence at the second trial in conformity with its amendment.\n2. Waters and Watercourses \u00a7 1\u2014 servience of lower lands\nEach of the lower parcels of land along natural drainways is servient to those on the higher level in that each is required to receive and allow the unimpeded passage of surface water from the higher level.\n3. Waters and Watercourses \u00a7 1\u2014 diversion of water \u2014 acceleration of water\nWhile a property owner may not divert water or cause it to flow onto the land of another in a manner different from its natural course so as to injure the other owner\u2019s land, he may accelerate and increase the flow of such water from his lands provided the course remains unchanged.\n4. Municipal Corporations \u00a7 20; Waters and Watercourses \u00a7 1\u2014 change of culvert size \u2014 flooding \u2014 absence of negligence\nIn this action against a city to recover for flood damage to plaintiff\u2019s property, plaintiff\u2019s evidence was insufficient for the jury where it tended to show only that defendant city replaced a culvert with a larger culvert, and that large debris which could not have passed through the smaller culvert did pass through the replacement culvert and blocked plaintiff\u2019s smaller culverts, causing water to pond and flood plaintiff\u2019s property, since defendant only increased or accelerated the flow of water under its street.\nAppeal by plaintiff from Long, Judge. Judgment entered 27 August 1975 in Superior Court, Forsyth County. Heard in the Court of Appeals 17 March 1976.\nIn this action, instituted on 14 August 1964, plaintiff seeks to recover $75,000 as compensation for flood damage allegedly caused by the negligence of defendant.\nThe case first came on for trial at the 17 April 1967 session of the court. After considering the pleadings and stipulations entered into between the parties, the trial judge concluded that, as a matter of law, plaintiff was not entitled to recover and entered judgment dismissing the action. Plaintiff appealed and in an opinion, filed 8 November 1967, reported in 271 N.C. 715, 157 S.E. 2d 577, the Supreme Court reversed the judgment of the trial court, holding that if plaintiff was able to substantiate its allegations, it was entitled to have a jury pass upon its claim.\nThe allegations of the pleadings at the time of the former appeal are summarized in the Supreme Court opinion cited above and no useful purpose would be served in summarizing them here.\nOn 5 July 1968 and 1 November 1968, plaintiff filed amendments to its complaint. The substance of the amendments are hereinafter set forth in this opinion.\nWhen the cause came on for trial at the 25 August 1975 session of the court, plaintiff presented evidence which is summarized in pertinent part as follows:\nIn about 1925 plaintiff purchased a vacant lot approximately 150 feet northwest of South Main Street in Winston-Salem. A small creek or branch ran through plaintiff\u2019s property and on through a culvert under South Main Street, plaintiff\u2019s property being downstream from the street. At that time defendant maintained a 30-inch culvert or pipe under the street, this being the same culvert that was under the street when defendant annexed the area in 1919.\nIn 1925 plaintiff laid a 24-inch pipe in the branch running through its property and built over it, the open branch continuing north and south of plaintiff\u2019s building. Around 1930 plaintiff extended its building to the west and installed a 36-inch pipe under the new section. In 1946 plaintiff installed two pipes, 24 inches and 30 inches in size, and extended its building to the south. In about 1951 plaintiff purchased the 150 feet of property between its original lot and the Main Street culvert; a manhole was built at the west end of the culvert and a 36-inch pipe was installed between the manhole and the two pipes beginning at the south side of plaintiff\u2019s building. In 1954 plaintiff sold this property and the purchaser built an A & P food store and parking lot on it.\nIn 1960 defendant replaced the old 30-inch pipe or culvert under Main Street with a new 42-inch culvert. Until 1960 plaintiff had never had any flooding problems but in April of 1961 its property was flooded and on 28 May 1963 there was another flooding incident that was considerably worse. The flooding caused water to run into plaintiff\u2019s building, inflicting extensive damage to its machinery, merchandise and other property.\nAfter the 1963 flooding, employees of plaintiff and defendant examined the junction box where plaintiff\u2019s 30 and 24-inch pipes connected with the 36-inch pipe at the A & P store property line. They found that the passage of water into plaintiff\u2019s pipes had been blocked by automobile tires, logs, a tree stump, and other large items of debris. Prior to 1960 these items of debris could not have passed through the Main Street culvert.\nDefendant\u2019s employees regularly inspect the Main Street culvert and also the pipes continuing downstream from the culvert. They crawl through the pipes from time to time and clean out debris. They crawled through the pipe under the A & P property on 24 May 1963, four days before the flooding of plaintiff\u2019s property. While defendant does not make repairs and maintenance on drainage pipes located on private property, it cleans them out.\nAt the conclusion of plaintiff\u2019s evidence, defendant\u2019s motion for directed verdict pursuant to Rule 50(a) was allowed and from judgment dismissing the action, plaintiff appeals.\nDeal, Hutchins and Minor, by William Kearns Davis, for 'plaintiff appellant.\nWomble, Carlyle, Sandridge and Rice, by William F. Womble and Roddy M. Lig\u00f3n, Jr., for defendant appellee."
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  "file_name": "0297-01",
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