#### L. A. RECTOR v. NORTH CAROLINA ELECTRICAL POWER COMPANY.

(Filed 24 December, 1920.)

Negligence — Actus Dei — Floods—Evidence—Trials.

In tbe building of a dam and power bouse to generate electrical power on its own land and premises, tbe defendant is not responsible for damages caused to tbe plaintiff’s land on tbe stream below, by a rain storm or cloud burst of magnitude theretofore unknown at tbe place, especially when it appears tbat tbe dam remained intact after tbe storm, and there’ was no negligence in its construction or in other acts of tbe defendant relating thereto; and evidence of tbe extraordinary character of tbe storm was competent.

Appeal by plaintiff from Webb, J., at April Term, 1920, of Madison.

Appeal by tbe plaintiff from a judgment of nonsuit. In 1911 tbe defendant company constructed a concrete dam 32 feet high across tbe French Broad River, two miles below Marshall, and built a power bouse for tbe generation of electric power. Tbe defendant bought from tbe owner 3% acres from tbe upper end of a tract of land on tbe south side of tbe river just below its dam and powerhouse. Tbe plaintiff bought tbe remainder of said tract just below tbe defendant’s purchase. In building tbe dam and powerhouse tbe defendant cut away and removed from its own land sundry ledges of rock, thick shrubbery and heavy timber for tbe construction of tbe tail race from tbe powerhouse, and piled some of tbe removed stone on their own land below tbe dam. Tbe defendant, also, in building tbe dam, raised tbe Southern Railroad track on tbe other side of tbe river, -below tbe dam, and built a concrete wall extending up tbe river over 600 feet from tbe dam on tbat side.-

On 15 July, 1916, there was a severe storm and cloudburst, raising tbe water on tbat and tbe next day several feet above what it bad ever *623been before. The plaintiff claims that the damage from the flood which washed away a part of the surface of the land below the dam was due to the negligence of the defendant.

The court, at the close of the evidence, directed a nonsuit from which the plaintiff appealed. The plaintiff also excepted to the admission of evidence showing that the freshet was of abnormal size.

John A. Hendricks, and J. G. Ramsey for plaintiff.

Gv/y V. Roberts and Mark W. Brown for defendant.

Clark, C. J.

We think that the nonsuit was properly granted and there was no error in the admission of the evidence, which was conclusive, that this freshet was the largest over known in that section and “the memory of man runneth not to the contrary.” There was no evidence of negligence in the construction of the dam and powerhouse, or in clearing away the ledge of rock and shrubbery for the construction of the tail race, or in piling the rock on the defendant’s own land, nor that so doing was the cause of washing the plaintiff’s land, nor if it had been, was it negligence not to have foreseen that there would be a freshet so abnormally high that it would divert the water — if it did so.

The dam was not broken, and no more water came over it and went over the plaintiff’s land below than would have come down the river, and it would have gone over the plaintiffs land to exactly the same depth if there had been no dam. It was the hydraulic force of the great volume of water rolling down the river which washed the plaintiff’s land and there is no evidence of negligence on the part of the defendant which would have justified submitting the ease to the jury. •

The great sun, 1,300,000 times larger than the globe upon which we live, brooding over the tropical waste of waters with untempered heat, rarified the atmosphere over the summer seas of the West Indies, at the same time drawing up by evaporation water which formed clouds above. The heavier air of the colder regions, north and south, impelled by the force of gravity, rushed in to fill the vacuum. The counter movement of the winds, and the precipitation of the water, caused a hurricane which passed up the Atlantic coast. This, by some unknown cause, was diverted near Charleston and Savannah northwesterly to the mountains. When over the upper reaches of the-French Broad and the Catawba and neighboring streams, the electricity between the stormclouds and the earth caused a cloudburst. It could not be called a rain, but literally “the windows of Heaven were opened and the waters descended.”

The defendant, or any other mortal power, was not responsible for the damage caused by the abnormal height of the flood, nor responsible for negligence in not providing against, if it could have been foreseen, the damage which would be done by so unprecedented a flood.

*624Tbe writer of tbis opinion was marooned at Morganton by tbis same flood, wbicb cut off communication on all sides by rail and wire and by public road for several days, and saw tbe flood that filled tbe valley of tbe Catawba, wbicb was 22 feet in beigbt above all precedents, and swept away every bridge across tbe river for more tban 100 miles. It was doubtless tbe greatest flood in that and neighboring rivers since tbe Ice Age when tbe melting glaciers filled tbe valleys and dug tbe channels beneath them as beds for tbe present rivers.

Tbis is tbe only case which has come to tbis Court, and probably tbe only action that has been brought anywhere, to fasten upon any human agency responsibility for tbe destruction by waters without similar record in historic times.

"We think tbe judge properly held that' the defendant was in no wise responsible for the damage done to tbe plaintiff’s land.

Affirmed.