{
  "id": 8658912,
  "name": "R. C. BARCLIFF v. NORFOLK SOUTHERN RAILROAD COMPANY",
  "name_abbreviation": "Barcliff v. Norfolk Southern Railroad",
  "decision_date": "1915-02-17",
  "docket_number": "",
  "first_page": "268",
  "last_page": "270",
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    {
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      "cite": "168 N.C. 268"
    }
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "124 N. C., 219",
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      "cite": "143 N. C., 289",
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      "cite": "165 N. C., 396",
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      "cite": "148 N. C., 288",
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          "page": "447"
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      "cite": "109 N. C., 341",
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      "cite": "124 N. C., 214",
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      "cite": "145 N. C., 17",
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  "last_updated": "2023-07-14T21:05:21.378028+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "R. C. BARCLIFF v. NORFOLK SOUTHERN RAILROAD COMPANY."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nTbis is an action for damages for .diverting surface water from tbe right of way of tbe defendant and ponding it back upon tbe plaintiff. Tbe defendant in building its roadbed in 1881 passed tbrougb several thousand acres of low, boggy, and uncleared land, a portion of which formed a basin in which all water falling on this area and surrounding lands accumulated and stood until it passed off by percolation or evaporation. The defendant, in order to maintain its roadbed through this basin, found it necessary to drain somewhere, and for that purpose cut two 6-foot lateral ditches along its right of way, and then, in order that the water on the eastern side might be carried through to the western side, it put a culvert under its roadbed whereby the water which would have drained east if at all was carried to the western side; To let it out of this basin the defendant secured the use of an old ditch known as the \u201cTerry\u201d ditch, and, cutting a connecting ditch 125 yards from its right of way through the rim of the basin, drained the diverted water down the \u201cTerry\u201d ditch some 800 yards to the county road ditch, and thence along the road 180 yards to where the ditch crossed the county road through a culvert. In 1911 the defendant enlarged these ditches from their right of way to the county road and along the county road to an 8-foot ditch, but left the culvert at the county road not enlarged, and did not extend the ditch beyond the county road.\nThe motion to nonsuit was properly denied. The principle is well settled that an upper proprietor can increase and accelerate the flow of water from his land, but such flow of water must not be diverted to the detriment of the lower proprietor. Briscoe v. Parker, 145 N. C., 17; Mizzell v. McGowan, 125 N. C., 439; Hocutt v. R. R., 124 N. C., 214. There is evidence tending to show that the increased flow of the water collected by the defendant\u2019s ditches and carried down through the other ditches to the culvert at the county road was there impeded and backed up, overflowing and damaging the plaintiff\u2019s land, because the culvert was not enlarged with the enlargement of the ditches above it. The water thus carried down to said culvert and there backed up on the plaintiff\u2019s land was not water which would have flowed, if at all, eastward, and was brought under the defendant\u2019s roadbed and thence let out by a ditch cut through the rim of the basin, down the ditches above mentioned. This was a diversion of water to the plaintiff\u2019s injury.\n\u201cThe defendant has no right to collect surface water into a ditch not adequate to receive it and thus flood and injure the lands of another.\u201d Staton v. R. R., 109 N. C., 341; Jenkins v. R. R., 110 N. C., 444, 447. This is not the ease of draining into a natural waterway increasing its flow, which defendant had a right to do, but is a case of collecting surface water into an inadequate ditch, which did not reach a natural watercourse, diverting it and leading it down to a point where by reason of tbe insufficient exit it was backed up and overflowed tbe plaintiff\u2019s land. Mizzell v. McGowan, 120 N. C., 134; Briscoe v. Parker, 145 N. C., 17; Davenport v. R. R., 148 N. C., 288.\nIn Brown v. R. R., 165 N. C., 396, the Court said that tbe bigber owner \u201ccannot artificially increase tbe natural quantity of water or change its natural manner of flow by collecting it in a ditcb and discharging it upon tbe servient land at a different place or in a different manner from its natural discharge.\u201d\nThis cause of action, did not accrue till 1911, when tbe enlargement of tbe ditcb and tbe defendant\u2019s failure to lengthen and enlarge tbe same at tbe mouth caused tbe flooding. No damage bad accrued to plaintiff till that time and no action could have been maintained. Tbe injury was not caused by tbe ditches dug in 1881, but by tbe deepening and enlarging of them in 1911, whereby tbe additional water was carried down and was stopped by tbe failure to enlarge tbe culvert at tbe public road and to carry tbe ditcb farther on. It is true, tbe ditches dug in 1881 diverted tbe water, but it was carried by tbe plaintiff\u2019s land, and tbe exit being sufficient tbe water was not ponded back on him and be suffered no damage. Tbe statute of limitations began to run, therefore, only with tbe enlargement of tbe ditches in 1911 and tbe overflow then caused by tbe insufficient exit afforded by tbe culvert. Roberts v. Baldwin, 155 N. C., 277; Park v. R. R., 143 N. C., 289; Hocutt v. R. R., 124 N. C., 219.\nTbe diversion of tbe water began in 1881, but, having caused no damage to plaintiff, be could not bring an action for damages. If tbe acceleration in 1911 was of a natural flow, this would not give a ground of action, but it is tbe acceleration of diverted water which caused tbe damage.\nTbe plaintiff is entitled to recover such damages as accrued within three years prior to tbe commencement of this action, or be could recover permanent damages in an action brought therefor within five years after tbe enlargement of tbe ditcb and tbe ponding back of tbe diverted water by tbe insufficient culvert, unless by acquiescence for twenty years tbe presumption of a grant or easement bad arisen. Roberts v. Baldwin, 151 N. C., 408.\n\u25a0The lower proprietor is not required to avoid damages to bis land in such case by digging ditches to carry off surface water wrongfully diverted from its natural flow by tbe upper proprietor to bis damage. Roberts v. Baldwin, 155 N. C., 281; Waters v. Rear, ante, 246.\nNo error.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "Thomas J. Marhham and Aydlett & Simpson for plaintiff.",
      "J. Kenyon .Wilson for defendant."
    ],
    "corrections": "",
    "head_matter": "R. C. BARCLIFF v. NORFOLK SOUTHERN RAILROAD COMPANY.\n(Filed 17 February, 1915.)\n1. Waters \u2014 Upper Proprietor \u2014 Diverting Flow \u2014 Damages.\nAn upper proprietor can increase and accelerate the flow of water from liis lands without liability to the lower proprietor for damages; but when \u25a0 the flow of water is diverted to the detriment of the lower proprietor, he may recover for the damages consequently caused to his lands.\n2. Same \u2014 Swamp Lands \u2014 Drainage\u2014Insufficient Culvert.\nWhere the track of a railroad company passes through a large area of low, boggy, and undrained land, and to drain the same the company cuts ditches through the rim of the basin, to carry off the water to an existing ditch, which empties the water into a ditch along the county road, carrying it further along to where the last ditch crosses the road through a culvert; and thereafter enlarges the various ditches so as to carry off more of the water, but fails to enlarge the culvert whereby the increase of water finds an insufficient outlet and ponds water back upon the plaintiff\u2019s land, to his damage: Held, the drainage of the lands by the defendant, in this manner, and diverting its flow with an insufficient culvert, caused an injury to the plaintiff\u2019s land for which the defendant is responsible in damages.\n3. Same \u2014 Limitation of Action.\nWhere an upper proprietor has drained, by the use of ditches ultimately emptying through a culvert, under a railroad embankment, an area of his low, swampy lands, and thereafter enlarges the ditches so as to carry such additional quantity of waste as to render the culvert inadequate and pond water upon the lands of the lower proprietor, the latter\u2019s cause of action did not accrue until the ditches were so enlarged, and the statute of limitations did not commence to run till then.\n4. Same \u2014 Continuing Damages \u2014 Presumption of Grant \u2014 Permanent Damages.\nWhere the upper proprietor has caused damages to the lands of the lower proprietor by diverting the surface waters from their natural flow, the latter, in his action, is entitled to recover such damages as accrued within three years prior to the commencement of the action, unless there is a presumption of a grant from twenty years acquiescence, or permanent damages in an action brought within five years after the act complained of.\n5. Waters \u2014 Upper Proprietor \u2014 Diverting Water \u2014 Rights of Lower Proprietor \u2014Diminishing Damages.\nThe lower proprietor, upon whose lands the upper proprietor has diverted the flow of water to his damage, is not required to avoid the damage by digging drainage ditches to carry off the water.\nAppeal by defendant from- Garter, J., at November Term, 1914, of PasquotaNK.\nThomas J. Marhham and Aydlett & Simpson for plaintiff.\nJ. Kenyon .Wilson for defendant."
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  "file_name": "0268-01",
  "first_page_order": 324,
  "last_page_order": 326
}