{ "id": 8624617, "name": "A. B. BRASWELL, JR., and wife, PEGGY S. BRASWELL, Petitioners v. STATE HIGHWAY AND PUBLIC WORKS COMMISSION, Respondent", "name_abbreviation": "Braswell v. State Highway & Public Works Commission", "decision_date": "1959-06-12", "docket_number": "", "first_page": "508", "last_page": "514", "citations": [ { "type": "official", "cite": "250 N.C. 508" } ], "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": "57 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630552 ], "opinion_index": 0, "case_paths": [ "/nc/231/0481-01" ] }, { "cite": "130 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273688 ], "opinion_index": 0, "case_paths": [ "/nc/130/0375-01" ] }, { "cite": "84 S.E. 290", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "168 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658912 ], "opinion_index": 0, "case_paths": [ "/nc/168/0268-01" ] }, { "cite": "72 S.E 210", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "156 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270452 ], "opinion_index": 0, "case_paths": [ "/nc/156/0155-01" ] }, { "cite": "81 S.E. 450", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "165 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659272 ], "opinion_index": 0, "case_paths": [ "/nc/165/0392-01" ] }, { "cite": "88 S.E. 495", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270356 ], "opinion_index": 0, "case_paths": [ "/nc/171/0365-01" ] }, { "cite": "41 Ill. 502", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216586 ], "opinion_index": 0, "case_paths": [ "/ill/41/0502-01" ] }, { "cite": "79 N.E. 27", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "25 Minn. 331", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 765809 ], "opinion_index": 0, "case_paths": [ "/minn/25/0331-01" ] }, { "cite": "299 P. 819", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "26 So. 2d 184", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 1957756 ], "opinion_index": 0, "case_paths": [ "/fla/157/0425-01" ] }, { "cite": "86 N.W. 2d 56", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 4759290 ], "opinion_index": 0, "case_paths": [ "/neb/165/0459-01" ] }, { "cite": "103 A. 2d 422", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "133 S.E. 781", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "229 P. 2d 255", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2080537 ], "opinion_index": 0, "case_paths": [ "/or/191/0182-01" ] }, { "cite": "290 U.S. 13", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3927686 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/290/0013-01" ] }, { "cite": "127 S.E. 697", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "189 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654716 ], "opinion_index": 0, "case_paths": [ "/nc/189/0589-01" ] }, { "cite": "19 S.E. 2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626749 ], "opinion_index": 0, "case_paths": [ "/nc/221/0166-01" ] }, { "cite": "75 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615403 ], "opinion_index": 0, "case_paths": [ "/nc/237/0540-01" ] }, { "cite": "98 S.E. 2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625745 ], "opinion_index": 0, "case_paths": [ "/nc/246/0221-01" ] }, { "cite": "120 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659127 ], "opinion_index": 0, "case_paths": [ "/nc/120/0498-01" ] }, { "cite": "120 N. C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656602 ], "opinion_index": 0, "case_paths": [ "/nc/120/0134-01" ] }, { "cite": "58 S.E. 2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631109 ], "opinion_index": 0, "case_paths": [ "/nc/231/0566-01" ] }, { "cite": "81 S.E. 2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628421 ], "opinion_index": 0, "case_paths": [ "/nc/239/0697-01" ] }, { "cite": "58 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630957 ], "opinion_index": 0, "case_paths": [ "/nc/231/0540-01" ] }, { "cite": "71 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626542 ], "opinion_index": 0, "case_paths": [ "/nc/235/0671-01" ] }, { "cite": "89 S.E. 2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620922 ], "opinion_index": 0, "case_paths": [ "/nc/242/0612-01" ] }, { "cite": "89 S.E. 2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619395 ], "opinion_index": 0, "case_paths": [ "/nc/242/0584-01" ] }, { "cite": "130 S.E. 851", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613288 ], "opinion_index": 0, "case_paths": [ "/nc/190/0715-01" ] }, { "cite": "96 S.E. 45", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "175 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661003 ], "opinion_index": 0, "case_paths": [ "/nc/175/0574-01" ] }, { "cite": "124 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658652 ], "opinion_index": 0, "case_paths": [ "/nc/124/0214-01" ] } ], "analysis": { "cardinality": 880, "char_count": 15887, "ocr_confidence": 0.55, "pagerank": { "raw": 1.4165194544682234e-07, "percentile": 0.6481399108596679 }, "sha256": "7b591a02a7b131e670edd3eb25d687cddc772c0510913a91a992cf15d0f001d5", "simhash": "1:3b425147813c6ee3", "word_count": 2681 }, "last_updated": "2023-07-14T15:44:40.326881+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "A. B. BRASWELL, JR., and wife, PEGGY S. BRASWELL, Petitioners v. STATE HIGHWAY AND PUBLIC WORKS COMMISSION, Respondent." ], "opinions": [ { "text": "RodmaN, J.\nRespondent, by demurrer filed here and by exceptions duly noted in the record, presents for determination these questions: (1) Does the amended petition state a cause of action; (2) if so, does the evidence require submission of issues to the jury; and (3) was prejudicial error committed during the trial entitling respondent to a venire de novo?\nAn answer to the first question is not only essential, but the reasons which are the basis for the answer will materially simplify the solution of the remaining questions. The answer is, of course, to be found by looking at the facts alleged. For that purpose we make this summary of the amended petition:\n(1) Petitioners own and occupy as their home lot 25 and a part of lot 24, Block 6, in Beechwood Acres, a residential subdivision adjacent to Charlotte. Their dwelling was constructed and occupied prior to 1956. (2) In the spring of 1956 respondent began construction of a road through Beechwood Acres to form a bypass around Charlotte for U. S. Highway 29. The right of way for the bypass is 260 feet wide and lies in a general east-west direction. (3) Prior to road construction Beechwood Acres was drained by two branches which united to form a creek.. Branch 1 flowed in a southerly direction, Branch 2 in an easterly direction. These branches united at the edge of .the fill constructed by respondent. The creek flowed in a southeasterly direction under a bridge at Beechwood Road to and through a culvert under .the P & N Railroad. This bypass crosses over P & N Railroad north of the bed of the creek. (4) The divide for waters in Beechwood Acres, and land to the west of Beechwood Acres was to the east of Tuckaseegee Road. This watershed was cut by respondent and water from another drainage basin diverted into Branch 2, which branch was enlarged, relocated, straightened, and in part paved. The petition specifically alleges: \u201cThat respondent has caused a diversion of water in the construction of said new highway in certain particulars ...\u201d This is followed with six detailed and specific allegations of diversion. (5) Petitioners\u2019 property fronts on Glenwood Road and runs back to the creek. It is situate about 250 feet from the bypass. (6) The diversion of the waters has caused the creek to overflow its banks and flood petitioners\u2019 property. It will continue subject to the flooding in periods of heavy rain. The diversion and resulting damage constituted a taking entitling petitioners to compensation.\nThe demurrer admits respondent in the construction of the bypass has, as alleged, diverted water resulting in damage to petitioners.\nCounsel for respondents recognize the general rule that liability exists for damage resulting from a diversion of water. They quote from Hocutt v. R. R., 124 N.C. 214: \u201cIt is now well 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.\u201d They then frankly say: \u201cIt is admitted that if the \u2018diversion equals liability\u2019 rule is applicable to the State Highway Commission, then the amended petition states a cause of action.\u201d\nTheir position is that liability cannot be imposed on a governmental agency for damages resulting from road construction unless there be negligence in the design or manner in which the work is done, and since the .petition does not allege negligence in planning the road nor in the actual construction, the petition fails to state a cause of action. As authority for their position they cite Yowmans v. Hendersonville, 175 N.C. 574, 96 S.E. 45, and Eller v. Greensboro, 190 N.C. 715, 130 S.E. 851.\nIt is true that language is to be found in those cases which may seem to support respondent\u2019s position, but when the factual situation dealt with in those cases is understood, it is readily apparent that the conclusions reached in those cases have no application to the factual situation here presented.\nFirst it may be noted that those cases dealt with the improvement of an existing road. Here there was no road prior to 1956. But more important, those cases dealt with the duties and obligations of upper and lower proprietors with respect to the disposition of waters falling within the watershed.\nThat negligence need not be alleged to create liability for a diversion is, we think, apparent from what is said in the Yowmans case, supra: \u201cIn further consideration of the facts in evidence, it is very generally held here and elsewhere that while municipal authorities may pave and grade their streets and are not ordinarily Imble 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. . . . And, under appropriate instructions applied to the facts and principles of law heretofore stated, the question of defendant\u2019s responsibility should be made to depend chiefly on whether, having gathered and concentrated the surface water into artificial drains or sewers, it turned same on plaintiff\u2019s property in such manner and such volume that the injuries complained of were likely to result, and did result, under and from the conditions presented. If so, the issue should be answered \u2018Yes.\u2019 \u201d\nOur Constitution, Art. I, s. 17, guarantees payment of compensation for property taken by sovereign authority. Eller v. Board of Education, 242 N.C. 584, 89 S.E. 2d 144; Sale v. Highway Com., 242 N.C. 612, 89 S.E. 2d 290; Raleigh v. Edwards, 235 N.C. 671, 71 S.E. 2d 396; McKinney v. Deneen, 231 N.C. 540, 58 S.E. 2d 107.\nIf the right to have w.ater flow in the direction provided by nature is a property right, it follows that the owner of property is protected by the constitutional guarantee and must be compensated when he has been damaged 'by the destruction of that right.\nRepeated decisions of this Court have clearly indicated if not expressly declared that the benefits accruing to property by adhering to nature and permitting water to drain according to the terrain and natural flow is a property right. Eller v. Board of Education, supra; Johnson v. Winston-Salem, 239 N.C. 697, 81 S.E. 2d 153; Phillips v. Chesson, 231 N.C. 566, 58 S.E. 2d 343; McKinney v. Deneen, supra; Mizzell v. McGowan, 120 N. C. 134.\nWith reference to a similar situation, it is said in Beach v. R. R., 120 N.C. 498: \u201cThe interest and convenience of the public will not permit the abatement of the nuisance, andr the law does not contemplate an indefinite succession of suits. Therefore, a lump sum is recoverable, at the demand of either party, in consideration of which the defendant acquires the right to discharge its ditches upon plaintiff\u2019s land. This is nothing more than an easement appurtenant to defendant\u2019s right of way.\u201d (Emphasis supplied.)\nEasements are interests in land. Reed v. Elmore, 246 N.C. 221, 98 S.E. 2d 360; Borders v. Yarbrough, 237 N.C. 540, 75 S.E. 2d 541; Sanders v. Smithfield, 221 N.C. 166, 19 S.E. 2d 630; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697.\nChief Justice Hughes, speaking with reference to a similar factual situation, said, in Jacobs v. U. S., 290 U.S. 13, 78 L. Ed. 142: \u201cA servitude was created by reason of intermittent overflows which impaired the use of the lands for agricultural purposes. 45 F. (2d) p. 37, 63 F. (2d) p. 327. There was thus a partial taking of the lands for which the Government \u00abwas bound to make compensation under the Fifth Amendment.\u201d\nThe rule as stated has been uniformly applied in other jurisdictions. As illustrative, see Levene v. City of Salem, 229 P. 2d 255 (Ore.); City of Portsmouth v. Weiss, 133 S.E. 781 (Va.); Rau v. Wilden Acres, 103 A. 2d 422 (Pa.); Armbruster v. Stanton-Pilger Drainage District, 86 N.W. 2d 56 (Neb.); Panama City v. York, 26 So. 2d 184 (Fla.); White v. City of Santa Monica, 299 P. 819 (Cal.); O\u2019Brien v. City of St. Paul, 25 Minn. 331; Elser v. Village of Gross Point, 79 N.E. 27 (Ill.); Nevins v. City of Peoria, 41 Ill. 502; 38 Am. Jur. 352, 63 C.J.S. 271-3.\nThe petition states a cause of action. The demurrer is overruled.\nThat respondent cut through the ridge near Tuckaseegee Road and thereby brought into' Beechwood Acres and the creek forming a boundary of petitioners\u2019 property water which had never flowed in that direction prior to the construction of the road is not controverted. It is established by witnesses for both petitioners and respondent.\nWitnesses for respondent fixed the area from which the water is so diverted as approximating three acres and the quantity of water so diverted as small and insufficient to cause damage. Petitioners do not concede the accuracy of acreage or quantity diverted as asserted by respondent\u2019s witnesses. Their testimony is fairly subject to the interpretation that the water admittedly diverted was largely responsible for the damage.\nIn addition to the admitted diversion from the west side there is evidence that water falling on the northern portion of the development drained eastwardly down Beachwood Road and into the creek below petitioners\u2019 home. The highway is on a fill 30-40 feet high where it passes petitioners\u2019 home. This fill divided what was Beechwood Road into two distinct parts, preventing the water from following its natural flow. To take care of the water from the north formerly flowing along Beechwood Road, respondent cut a ditch on the north side of its embankment and into Branch 1 above petitioners\u2019 home. Petitioners claim this diversion materially added to their damage.\nSharp disagreement exists iwith respect to the situation where the bypass crosses by overpass the P & N Railroad. Respondent\u2019s evidence tends to establish its work drained water from some 30 acres away from Beechwood Acres and petitioners\u2019 property and as a result petitioners are less likely to suffer from floods than they would if the road had not been built.\nPetitioners testified their property had never been flooded prior to 1956 when the construction work was started, although the creek had several times run bank full. Between the completion of the fill and the trial in December 1958 petitioners\u2019 property had been flooded nineteen times, the water, on one occasion, rising to a height of four feet.\nRespondent countered by showing an abnormal number of heavy rains during that period. Between 1 August 1957 and 1 August 1958 the rainfall in Charlotte exceeded that for the preceding twelve months by 9.21 inches and exceeded the average for the preceding five years by 26.9%.\nPetitioners\u2019 testimony, if true, established a diversion resulting in damage. What the truth was upon the conflicting testimony was a question for the jury.\nThe motion to nonsuit was properly overruled.\nIn the charge the court stated: . . the theory of this case as pleaded in petitioners\u2019 amended petition is that of diversion.\u201d He followed that statement by a correct definition of diversion. Then he told the jury: \u201cI charge you that the owner or occupant of the higher lands may increase the natural flow of water and may accelerate it but cannot divert the water and cause it to flow, upon the lands of the lower owner in a different manner or in a different place from which it would naturally go.\u201d The quoted portion is assigned as error. It is a correct statement of law applicable to the facts of this case. Phillips v. Chesson, supra; Cardwell v. R. R., 171 N.C. 365, 88 S.E. 495; Brown v. R. R., 165 N.C. 392, 81 S.E. 450; Hooker v. R. R., 156 N.C. 155, 72 S.E 210; Barcliff v R. R., 168 N.C. 268, 84 S.E. 290; Rice v. R. R., 130 N.C. 375; Hocutt v. R.R., supra.\nThe court further charged that the jury, to answer the second issue in the affirmative, would have to find not only the diversion as claimed 'but would have to find that such diversion was the proximate cause of petitioners\u2019 damage, and only to the extent the flooding was proximately caused by respondent would there be a taking for which it could be required to pay compensation.\nThe court\u2019s definition of taking requiring payment of compensation is taken from 18 Am. Jur. 756 and is quoted as correctly stating the law in Penn v. Coastal Corp., 231 N.C. 481, 57 S.E. 2d 817.\nEach of the exceptions to the charge have been examined; but when considered as a whole and not in disconnected clauses and sentences, w,e have not found error of which respondent can fairly complain.\nNo Error.", "type": "majority", "author": "RodmaN, J." } ], "attorneys": [ "Sedberry Sanders & Walker for petitioner appellees.", "Attorney General Seawell and Assistant Attorney General Wooten, Harrison Lewis, and McDougle, Ervin, Horack & Snepp for respondent, appellant." ], "corrections": "", "head_matter": "A. B. BRASWELL, JR., and wife, PEGGY S. BRASWELL, Petitioners v. STATE HIGHWAY AND PUBLIC WORKS COMMISSION, Respondent.\n(Filed 12 June, 1959.)\n1. Water and Water Courses \u00a7 2c\u2014\nThe right to recover for the wrongful diversion of the waters of a stream is not dependent upon negligence.\n2. Eminent Domain \u00a7 1\u2014\nOur Constitution guarantees payment of compensation for property taken 'by sovereign authority. Art. I, s. 17.\n3. Water and Water Courses \u00a7 2c\u2014\nThe right of a lower proprietor to have water drain according to terrain and natural flow is a property right in the nature of an easement appurtenant.\n4. Same: Eminent Domain \u00a7 2\u2014\nDiversion of the natural flow and drainage of streams and surface .waters incident to the construction of a highway, resulting in the periodic flooding of the lands of a proprietor, is a \u201ctaking\u201d of property for which just compensation must be paid.\n5. Eminent Domain \u00a7 9\u2014\nWhere the evidence discloses that the Highway Commission, incident to the construction of a new highway, diverted the flow of a stream and altered the drainage of the land, conflicting evidence as to whether' such diversion resulted in the periodic flooding of petitioners\u2019 land or whether such flooding was the result of excessive rains, etc. takes the issue to the jury.\n6. Water and Water Courses \u00a7 2c\u2014\nThe charge of \u2018the Court to the effect that the upper proprietor may increase or accelerate the natural flow of water but cannot divert it and cause it to flow upon the lands of the lower proprietor in a different manner or in a different place, and that the damages recoverable by the lower proprietor are limited to those proximately caused by sucli wrongful diversion, held not prejudicial.\nAppeal by respondent from Craven, S. J., December 1958 Special Civil Term of Mecklenburg.\nPetitioners seek compensation for the alleged diversion of water resulting in damage to their home by the construction of U. S. Highway 29 bypassing Charlotte. Commissioners were appointed by the clerk. They assessed; damages. Judgment was entered awarding damages in conformity with the report. Respondent appealed to the Superior Court in term. There an amended petition and answer were filed. The court submitted the controversy to a jury on these issues:\n\u201c1. Are the petitioners the owners of house and lots described in the amended petition? Answer:.\n\u201c2. Did respondent take an easement of flooding on or across the property of petitioners, as alleged in the amended petition? Answer:\n\u201c3. What sum, if any, are petitioners entitled to recover of respondent as just compensation for such easement? Answer:.\u201d\nThe jury answered the first two issues in the affirmative and fixed the amount of petitioners\u2019 damage. Thereupon the court entered judgment declaring respondent the owner of an easement entitling it to flood petitioners\u2019 property as there specifically described. The judgment also adjudged defendant liable for the amount fixed by the jury as compensation for the easement. Respondent appealed.\nSedberry Sanders & Walker for petitioner appellees.\nAttorney General Seawell and Assistant Attorney General Wooten, Harrison Lewis, and McDougle, Ervin, Horack & Snepp for respondent, appellant." }, "file_name": "0508-01", "first_page_order": 548, "last_page_order": 554 }