{ "id": 8659017, "name": "MIZELL v. McGOWAN", "name_abbreviation": "Mizell v. McGowan", "decision_date": "1901-10-01", "docket_number": "", "first_page": "93", "last_page": "96", "citations": [ { "type": "official", "cite": "129 N.C. 93" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "126 N. C., 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660934 ], "opinion_index": 0, "case_paths": [ "/nc/126/0509-01" ] }, { "cite": "124 N. C., 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658652 ], "opinion_index": 0, "case_paths": [ "/nc/124/0214-01" ] }, { "cite": "125 N. C., 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274170 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/125/0439-01" ] }, { "cite": "120 N. C., 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656602 ], "opinion_index": 0, "case_paths": [ "/nc/120/0134-01" ] } ], "analysis": { "cardinality": 431, "char_count": 5918, "ocr_confidence": 0.421, "pagerank": { "raw": 3.9480169305842157e-07, "percentile": 0.9037024938519581 }, "sha256": "dca36723f2721bf37a1bc2ebf23640e5f1ead45fce7c1a9f55c9cc6b51462556", "simhash": "1:663f605c8e114b51", "word_count": 1027 }, "last_updated": "2023-07-14T17:00:26.986874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MIZELL v. McGOWAN." ], "opinions": [ { "text": "Douglas, J.\nTbis is an action for damages to tbe plaintiff\u2019s land from flooding alleged to' have been caused by tbe improper and unlawful construction of ditches by tbe defendant,\nTbis is tbe third time that it has been before tbis Court, being reported in 120 N. C., 134, and 125 N. C., 439.\nTbe following are tbe issues and answers thereto: \u201c1. Is the plaintiff the owner and in possession of tbe lands described in fhe complaint? Ans. 'Yes/ 2. Did Mrs. Laura A. McGowan wrongfuly and unlawfully divert any water from its natural channel and discharge it upon tbe lands of plaintiff, causing damage to same? Ans. 'No.\u2019 3. What damage, if any, has plaintiff sustained by reason of the Avrongful diversion of said water ? Ans. 'Nothing.\u2019 \u201d\nWe think these were tbe proper issues, and covered every contention left open to tbe plaintiff in view of tbe opinions already rendered by this Court in tbis case. We see no reason'to depart from tbe rule we have laid down, and which may' noAv be considered settled, that \"neither a corporation nor an individual can divert water from its natural course so as to damage another. They may increase and accelerate, but not divert.\" Hocutt v. Railroad, 124 N. C., 214; Mizell v. McGowan, 125 N. C., 439; Lassiter v. Railroad, 126 N. C., 509. Tbe question of diversion was all that was left to the plaintiff, and that was submitted to tbe jury under instructions that appear to us without error.\nWe are aware that great hardship may sometimes occur from the unlimited right of increase and acceleration, and that there are some authorities limiting it to the capacity of the natural outlet; but we must adhere to the rule as the result of our deliberate judgment. However short it may fall as a theoretical definition of ideal right, we can frame none better that is capable of practical application.\nIts limits are clearly defined by the natural landmark of the water-shed, which, seen of all men, renders it easy of application and capable of definite proof. Any other rule would prevent the drainage of large bodies of swamp lands of great natural fertility and capable of the highest degree of improvement, but now worse than useless. They will eventually be needed to support an ever-increasing population, and to shut them up- indefinitely as the mere homes of disease is repugnant to the highest principles of public policy and of private right. Suppose the natural capacity of the water-course was made the test of the rule, it would be so extremely difficult of application as practically to destroy its value. What is the natural capacity of a stream? Is it measured at low water or at high water Almost any stream can carry off whatever water may be made to flow into it in dry weather,, or perhaps even in ordinary times. On the contrary, the clearing up of our lands is having the double effect of greatly accelerating the flow of water and at the same filling up our streams with sand, so that very few of them can now carry the water naturally flowing into- them after heavy rains.\nAgain, suppose the upper tenant were compelled to regard the natural capacity of the stream, how far down would this limitation extend ? Naturally, many others would drain into the same stream, so that the landowner near its mouth would get the accumulated waters of all those above him. In case of injury, how tvould he apportion his damages, and where would the liability of each tort-feasor begin and end ? These questions, it seems to' us, would severely tax the utmost ingenuity of the Courts, and leave tbe jury iu sucb a state of perplexity as to seriously endanger their intelligent determination of the issues.\nIt is contended by the defendant that Chapter 30 of The Code should be taken as determining this case. We do not think so. Those sections by their very terms apply to artificial outlets, such as ditches and canals, and not to natural watercourses. A man can dig ditches wherever he pleases upon his own land, provided he runs them into a natural watercourse before leaving his own land, subject only to the limitation against diversion. But if he can not reach a natural watercourse without going into the lands of another, he must proceed under Chapter 30 of The Code. The scope of this chapter is indicated in section 1297, which is in part ;.s follows: \u201cAny person owning pocosin, swamp or flat lands, or owning low lands subject to inundation, which can not be conveniently drained or embanked so as to drain off or dam out the water from such lands, except by cutting a canal or ditch, or erecting a dam through or upon the lands of other persons, may, by petition, apply to the Superior Court of the county,\u201d etc.\nIn the case at bar the defendant has not cut any ditch upon the lands of the plaintiff, nor does she wish to do so. She has simply, by means of her own ditches, turned into a natural watercourse upon her own land increased and accelerated but undiverted waters. The rules governing, natural and artificial watercourses as outlets through the lands of another, are essentially different- \u2014 this opinion dealing exclusively with the former.\nThe- judgment is\nAffirmed.", "type": "majority", "author": "Douglas, J." } ], "attorneys": [ "A. M. Moore, for. tbe plaintiff.", "Shinner & Whedbee, and Jarvis <& Blow, for tbe defendants." ], "corrections": "", "head_matter": "MIZELL v. McGOWAN.\n(Filed October 1, 1901.)\n1. WATERS AND WATERCOURSES \u2014 Diversion\u2014Acceleration\u2014Increase \u2014 Dam ages \u2014 Drains.\nWater can. not be diverted from its natural course so as to damage another, but it may be increased and accelerated.\n2. WATERS AND WATERCOURSES \u2014 Damming or Draining Lowlands \u2014 The Code, Vol. I, Chap. SO.\nChapter 30, Vol. I, of The Code, applies only to artificial outlets made over the land of another to reach a natural watercourse.\nActioN by W. G. Mizell against G. A. McGowan and others, heard by Judge W. A. Hohe and a jury, at May (Special) . Term, 1901, of the Superior Court of Pitt County. From a judgment for tbe defendants, tbe plaintiff appealed. .\nA. M. Moore, for. tbe plaintiff.\nShinner & Whedbee, and Jarvis <& Blow, for tbe defendants." }, "file_name": "0093-01", "first_page_order": 125, "last_page_order": 128 }