#### E. J. ELLER and Wife, JUANITA ELLER, v. CITY OF GREENSBORO.

(Filed 16 December, 1925.)

1. Municipal Corporations — Cities and Towns — Surface Water — Negligence — Streets and Sidewalks — Damages.

Tbe right of a city to grade and pave its streets passes to tbe municipality in its original creation, and an action for damages against it from a wrongful diversion of tbe flow of surface water rests upon tbe question as to wbetber tbe municipality was thereby negligent in causing an excessive flow of surface water upon tbe lands of an adjoining owner, tbe plaintiff in tbe action, causing substantial injury.

2. Same — Artificial Drains.

Tbe pipes and drains placed by a city to carry off tbe extra flow of surface water caused by street improvements, are construed to be “artificial drains.”

3. Same — Pleadings—Trials—Appeal and Error.

Where on tbe trial in tbe Superior Court tbe case against a municipality for damages for tbe wrongful diversion of surface water upon tbe lands of an adjoining owner, has been determined, without objection, upon tbe theory of permanent damages, and tbe inferences from tbe complaint are sufficient, tbe verdict in plaintiff’s favor will not be disturbed for tbe failure of specific allegation of tbe complaint to that effect.

*7164. Same — Measure of Damages — Trespass.

The measure of damages, in trespass, when recoverable in an action against a city for negligently diverting a greater volume of surface water upon the lands of an owner adjoining a street improved, is the difference in value of the land before and after the wrongful diversion of the surface water by the municipality.

5. Municipal Corporations — Cities and Towns — Surface Water — Negligence — Damages—Constitutional Daw.

The principle upon which a city is answerable in damages to an adjoining owner of lands whose property has been negligently injured by the increased flow of surface water caused by street improvements, rests upon the doctrine of the taking of private property for a public use upon payment of compensation.

Appeal from Schmclc, August Term, 1925, Guileoed Superior Court. No error.

E. J. Eller was tbe owner in fee of & house and lot in the city of Greensboro, on North Edgeworth Street, which he occupied as a residence. He alleges “That there is a natural drain or ditch from Edge-worth Street, through said lot, in which the surface water naturally flows, and at the time of the purchase of said lot in September, 1922, there had been provided sufficient pipes to convey away the water then flowing through said lot, without injury thereto. That after that date the defendant has carelessly and negligently and without providing sufficient outlet therefor, and in disregard of the duty it owed the said plaintiffs in that behalf, collected in much greater than the natural quantity, surface water from various parts of the city of Greensboro, and has diverted the natural flow of said surface water, and drainage and has concentrated the said increased flow of water and drainage, in such .manner as to discharge the same into said natural drain through said lot, without providing sufficient outlets for the same. That by reason of the said wrongful and negligent acts of defendant, the said lot has been flooded and the soil washed away, the cellar of the house of plaintiffs has been flooded and the wall undermined and said property has been thus and otherwise injured and damaged,” etc.

In answer, the city of Greensboro admits “That there is or was a natural -drain or ditch from Edgeworth Street through the lot referred to in the complaint, in which the surface water naturally flows, but it is denied that in September, 1922, after said ditch had been filled up by the owner of the said lot, sufficient pipes had been provided by the owner of the lot to carry away the water which drained onto the lot as the result of the natural formation of the land adjacent to said lot.”

For further answer, defendant says, in part: “That the lot mentioned in the complaint is situated at the bottom of a natural water shed *717extending from tbe top' of tbe bill in Green Hill Cemetery on tbe north to tbe top of tbe bill between Humphrey Street and West Gaston Street on tbe south, and from a point between Edgeworth Street and Green Street on tbe east, westwardly to Buffalo Creek; that all tbe water that falls on the eastern end of this water shed naturally drains, and has always drained, into and through tbe lot mentioned in tbe complaint; that, prior to tbe paving of Edgeworth Street by tbe city of Greensboro, such water as fell on tbe eastern end of this natural water shed and drained into tbe said lot, was conveyed from Edgeworth Street by a ditch several feet wide and some four or five feet deep, leading across tbe said lot and other lots to tbe west thereof, and that said ditch emptied into a branch, which in turn emptied into Buffalo Creek; that said ditch was amply adequate to take care of and did take care of all tbe surface water that drained onto tbe said lot.”

Tbe defendant further alleges that “it laid pipes more than adequate to take care of any additional volume of water that might be, or has been discharged onto tbe said lot as tbe result of tbe paving of streets adjacent to Edgeworth Street, or as tbe result of any other act done or caused by tbe defendant; that tbe injuries alleged by plaintiffs in their complaint were directly and proximately and solely caused by their negligence in filling up tbe aforesaid ditch without providing a culvert or pipes sufficient in number and size to carry away tbe water naturally discharged on said lot, and by permitting one of tbe two pipes provided to become and remain stopped up; and defendant pleads such negligence on tbe part of plaintiffs as a complete bar to their recovery.”

Tbe issues submitted to tbe jury and tbe answers thereto were as follows:

“1. Has tbe plaintiffs’ property been injured by tbe negligence of tbe defendant, city of Greensboro, as alleged in tbe complaint? Answer: Yes.

“2. What damage, if any, are tbe plaintiffs entitled to recover of tbe defendant? Answer: $1,300.”

Judgment was rendered on tbe verdict. Defendant made numerous exceptions and assignments of error. These, with necessary facts, will be considered in tbe opinion.

JR. Q. Strudwiclc and A. G. Davis for plaintiff.

Fentress & Moseley for defendant.

ClabksoN, J.

We think only two main questions are involved in this case :

(1) Tbe plaintiff contends that tbe duty defendant owed them — homeowners in tbe city of Greensboro — was not to carelessly and negligently *718grade and pave its streets so as to- collect and concentrate surface water greater than the natural quantity that flowed through their lot and discharge this increased and unnatural flow on their lot in such manner, mass and volume as to cause substantial injury to the same, without providing sufficient outlet. Defendant contends that it did not breach this duty.

(2) If defendant breached this duty, what is plaintiffs’ measure of damage ?

In Yowmans v. Hendersonville, 175 N. C., p. 577, it was held: “The right to change the grade of the streets and improve the same, according to modern and generally approved methods, passed to the municipality in the original dedication and may be exercised by the authorities as the good of the public may require. It is held in this jurisdiction, however, that the right referred to is not absolute, but is on condition that the same is exercised with proper skill and caution, and if, in a given case, or as it may affect the property of some abutting owner, there is a breach of duty in this respect, causing damage, the municipality may be held responsible. . . . (p. 578). It is very generally held here and elsewhere that while municipal authorities may pave and grade their streets and are not ordinarily liable for an increase of surface water naturally falling on the lands of a private owner, where the work is properly done, they are not allowed, from this or other cause, to concentrate and gather such waters into artificial drains and throw them on the lands of an individual owner in such manner and volume as to cause substantial injury to the same and without making adequate provision for its proper outflow, unless compensation is made, and for breach of duty in this respect an action will lie.”

The defendant prayed the court below to give six special instructions. These instructions were all given, but modified by the court below. We only give the first instructions — necessary for the decision of this case: “If the jury shall find that the surface water from a certain section of the city of Greensboro naturally drained through the plaintiffs’ lot, and if the jury shall find that the city of Greensboro in grading and paving its streets did not increase the area that naturally drained through plaintiffs’ lot, but that such paving of the streets within this drainage area, by making the streets impervious to water and consequently preventing a portion of the water from soaking into the ground, did in this way increase the amount of water that drained through plaintiffs’ lot, and that plaintiffs’ lot was damaged by reason of such increase, then the court charges the jury that the city of Greensboro would not be liable for such damage unless such grading and paving were done in a careless and negligent manner, and the jury should *719answer tbe first issue No.’ ” Modified by the court, as follows: “Provided, however, gentlemen of the jury, in this connection the court calls your attention to the fact that while the defendant, the city of Greensboro, as a municipal corporation, may pave and grade its streets, and is not ordinarily liable for increase of surface water naturally falling on the lands of the plaintiffs where the work was properly done, if the plaintiffs have satisfied you by the greater weight.of the evidence, that the defendant, city of Greensboro, in grading and paving its streets, diverted or concentrated and gathered surface water into artificial drains and threw it upon the lands of the individual owners in such manner and such volume "as to cause substantial injury to said lands, and that the city of Greensboro failed to make adequate provision for its outflow, and that these facts were the proximate cause of the injury to the plaintiffs’ lands, it would be your duty to answer the first issue Nes.’ ”

“The defendant admits that there is evidence that when the natural watercourse overflowed, the excess water did, of course, run over part of plaintiffs’ property. But the path followed by the overflow of water is not an artificial drain; for an artificial drain is a trench or ditch purposely dug or constructed for the specific purpose of conducting water along a certain route while the path followed by an overflow of water is simply the route which it naturally finds and follows when for some reason it is forced out of its original channel.”

The pipes which the defendant placed under the street and the gutters and catch basins on Edgeworth Street, we construe to be artificial drains. The water flowed along, over and through these drains, the overflow discharging upon plaintiffs’ property, so it would seem that they meet all the requirements of artificial drains. They were built by the defendant and were not “natural” drains. We cannot give to the word “artificial” the narrow construction as contended for by defendant.

In 13 E. C. L., 99, it is said: “Generally, when constructing, grading, .or otherwise improving a street or highway, a municipal or quasi-municipal corporation is not obliged to protect the adjoining property by the construction of sewers and drains, or otherwise, from the natural flow of surface water therefrom . . . (sec. 102). The municipality or gwewvmunicipality must exercise reasonable care in the construction of sewers or other sufficient means of carrying off surface waters collected in drains or artificial watercourses, and is liable for injuries to adjoining lands resulting from its negligent failure to do so.” Arndt v. Cullman, 132 Ala., 540; Valparaiso v. Spaeth, 166 Ind., 14; Farmville v. Wells, 127 Va., 528.

*720In McQuillan Municipal Corporations, vol. 6, it is said:

“2710. If a municipality is negligent in tbe construction or improvement of its streets, thereby causing injury from surface waters, tbe municipality is undoubtedly liable. As to just wben a public improvement, sucb as grading a street, is negligently done, no rule can be laid down, altbougb in some states tbe courts seem inclined to evade tbe rule of nonliability by ascribing tbe injury to negligence whenever there is a shadow of a reason for declaring tbe municipality negligent.”

Tbe city, having tbe power to grade, gutter and pave its streets, tbe actionable negligence extends where there has been substantial injury. Tbe city can only be liable for negligence in not exercising skill and caution in tbe construction of its artificial drains and watercourses. It is bound to exercise ordinary care and prudence. If they are so constructed as to collect and concentrate surface water that sucb an unnatural flow in manner, volume and mass is turned and diverted onto tbe lower lot, so as to cause substantial injury, tbe city is liable. Tbe decisions are in contrariety in other states, but we think this consonant with reason and justice and the accepted rule in this jurisdiction. Tbe charge of tbe court below was within tbe rule of tbe decision in tbe Yowmans case, supra. Hines v. Rocky Mount, 162 N. C., 409; Donnell v. Greensboro, 164 N. C., 330; Pennington v. Tarboro, 184 N. C., p. 71. Tbe municipality having certain ministerial or corporate duties, its liability is founded on negligence. Mabe v. Winston-Salem, ante, 486.

Tbe defendant contends that tbe complaint does not allege that it collected surface water into artificial drains. This is true, but tbe inference, from tbe language of tbe complaint, shows this. 1

In determining similar rights against individuals or public-service corporations, tbe accepted rule is different — it is held that more water than would naturally flow cannot be diverted and put on tbe land of another causing damage. Yowmans case, supra, p. 577.

In Brown v. R. R., 165 N. C., p. 396, tbe Court said that “tbe higher owner cannot artificially increase tbe natural quantity of water or change its natural manner of flow by collecting it in a ditch and discharging it upon tbe servient land at a different place or in a different manner from its natural discharge.” Barcliff v. R. R., 168 N. C., p. 270. Nor can sewerage. Finger v. Spinning Co., ante, 74.

Tbe second proposition is tbe measure of damage. Plaintiff described the effect and result of tbe accumulated or diverted water on bis lot, as follows: “It ponded tbe water up, backed up there into a pond. It washed my lot away. It flowed right across it, washed a big ditch down through it. Tbe flow of water came across my lot, flowed across tbe street down through my lot and washed a ditch in there several times. *721Tbe ditcb was about four or five feet deep, I guess, and that wide at tbe bottom — six or seven feet at tbe bottom and across tbe top. There was no ditcb there before tbe city did this paving that I know of, only tbe natural drain where tbe pipes were through. Tbe land was level there before. It backed up all tbe water, and tbe water flowed through under my bouse and undermined tbe foundation, let that down, and caused tbe plaster in tbe rooms of tbe bouse to crack by tbe foundation giving away. Tbe foundation gave way on tbe back of tbe bouse, and tbe bouse gave down in tbe walls and cracked tbe ceiling and tbe plaster in several of tbe rooms. It was a brick underpinned bouse. Tbe cellar was flooded with water. It looked like a fish pond. If a good rain came tbe overflow water stayed in there for a week. That situation was caused by mighty near an average rain.”

~We think as to damage, tbe principle applicable and the reason therefor is set forth in Hines v. Rocky Mount, supra, p. 412: “This general principle is subject to tbe limitation that neither a municipal corporation nor other governmental agency is allowed to establish and maintain a nuisance, causing appreciable damage to tbe property of a private owner, without being liable for it. To tbe extent of tbe damage done to such property, it is regarded and dealt with as a taking or appropriation of tbe property, and it is well understood that such an interference with tbe rights of ownership may not be made or authorized except on compensation first made pursuant to tbe law of tbe land. ... In affording redress for wrongs of this character, injuries caused by a nuisance wrongfully created in tbe exercise of governmental functions, our decisions bold as tbe correct deduction from tbe above principle that tbe damages are confined to tbe diminished value of tbe property affected.”

In trespass cases, as at bar, tbe measure of damages is tbe same. Ridley v. R. R., 118 N. C., 996; Parker v. R. R., 119 N. C., 677; Caveness v. R. R., 172 N. C., 305; R. R. v. Nichols, 187 N. C., 153; Southerland on Damages, vol. 4 (4 ed.), sec. 1065.

Tbe complaint did not ask for permanent damages, nor did defendant in its answer ask that permanent damages be assessed. Mitchell v. Ahoskie, ante, 235. Tbe evidence showed that tbe damage was permanent and tbe case was tried out on tbe theory of permanent damage. Coble v. Barringer, 171 N. C., 445; Cook v. Sink, ante, 621. We do not think there was prejudicial or reversible error.

From tbe whole record, we find

No error.