{
  "id": 8658755,
  "name": "JOSEPHINE WATERS v. WILEY M. KEAR",
  "name_abbreviation": "Waters v. Kear",
  "decision_date": "1915-02-17",
  "docket_number": "",
  "first_page": "246",
  "last_page": "247",
  "citations": [
    {
      "type": "official",
      "cite": "168 N.C. 246"
    }
  ],
  "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": [],
  "analysis": {
    "cardinality": 210,
    "char_count": 3044,
    "ocr_confidence": 0.451,
    "pagerank": {
      "raw": 3.220669113763395e-07,
      "percentile": 0.8670941819387926
    },
    "sha256": "9690acc13d50df035b368f69c0e2b0b7e678028a665fbd6f4a20c9f9b7f99e73",
    "simhash": "1:72367ea9c86870be",
    "word_count": 512
  },
  "last_updated": "2023-07-14T21:05:21.378028+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOSEPHINE WATERS v. WILEY M. KEAR."
    ],
    "opinions": [
      {
        "text": "Clabk, O. J.\nThis is an action for damages to plaintiff\u2019s crops and her land by the diversion of surface water. The jury found upon the issues submitted that the defendant wrongfully diverted the water upon the lands of the plaintiff; that her crops had been damaged, within three years before action brought and down to the trial, $150, and that the permanent damage to her land was $65.\nThe court submitted as additional issiies what it would have cost the plaintiff to have cut certain ditches, marked on the map, which would have prevented the diverted water from injuring the plaintiff\u2019s lands and crops, and whether the defendant offered to cut a ditch through plaintiff\u2019s land which would have prevented the injury, and which the plaintiff refused to let the defendant cut. The jury having found that the water was wrongfully diverted by the defendant upon the plaintiff\u2019s land, these latter issues and the findings thereon are irrelevant. If the water was wrongfully diverted, it may be that it would have been good neighborship and possibly good policy for the plaintiff to have permitted the defendant to have cut a ditch through her land, and thus have avoided any damage from the wrongful diversion of the water, if it would have had that effect. But the defendant had no legal right to require this, and the plaintiff was not required to assent to the defendant cutting a ditch through her-land (which She doubtless had her reason for not wishing to be put there) simply to relieve the defendant from the consequences of his wrongful act.\nThe defendant\u2019s remedy in such case, if any, was to have had the right of way condemned through the plaintiff\u2019s land under the Drainage Act. He certainly had the remedy in his own hands of abandoning the diversion of the water and draining the water off according to its natural flow. A somewhat similar state of facts is presented and discussed in Barcliff v. R. R., 268 post.\nThe court below should have rendered judgment in favor of the plaintiff, in accordance with the verdict on the second and third issues, for $215. -\nThe case will be remanded, to the end that judgment may be so entered. This renders it unnecessary to discuss the defendant\u2019s appeal.\nIn defendant\u2019s appeal, No error.\nIn plaintiff\u2019s appeal, Reversed.",
        "type": "majority",
        "author": "Clabk, O. J."
      }
    ],
    "attorneys": [
      "Ward & Grimes for plaintiff.",
      "Darnel & Warren for defendant."
    ],
    "corrections": "",
    "head_matter": "JOSEPHINE WATERS v. WILEY M. KEAR.\n(Filed 17 February, 1915.)\nWaters \u2014 Upper Proprietor \u2014 Diversion\u2014Drainage Ditches \u2014 Irrelevant Evidence \u2014 Condemnation\u2014Drainage Act.\n\u2022 Where tbe upper proprietor of lands has diverted tbe natural flow of tbe water thereon to tbe damage of tbe lower proprietor, tbe latter may then recover bis damages caused thereby, and it is no defense to show that be might have reduced his damages by cutting drainage ditches on bis own land or by agreeing that tbe upper proprietor should cut them. Tbe defendant\u2019s remedy, if any, was by proceedings for condemnation \u25a0 under tbe Drainage Act.\nAppeal by both plaintiff and defendant from Bond, J., at October Term, 1914, of Beaueobt.\nWard & Grimes for plaintiff.\nDarnel & Warren for defendant."
  },
  "file_name": "0246-01",
  "first_page_order": 302,
  "last_page_order": 303
}