Young v. City of Asheville

86 S.E.2d 408 (1955)

241 N.C. 618

O. F. YOUNG v. CITY OF ASHEVILLE, a municipal corporation, The Beaverdam Water and Sewer District, a Municipal Corporation, and John C. Vance, Coke Candler and George D. Young, County Commissioners, as Trustees of The Beaverdam Water and Sewer District.

No. 103.

Supreme Court of North Carolina.

March 23, 1955.

*411 Williams & Williams, Asheville, for appellee.

Robert W. Wells and George H. Wright, Asheville, for City of Asheville, appellant.

Roy A. Taylor and Don C. Young, Asheville for Beaverdam Water and Sewer District, appellant.

PARKER, Justice.

The defendants' sole assignments of error are the refusal of the Trial Court to sustain their separate motions for judgments of nonsuit made at the close of plaintiff's evidence, and renewed at the close of all the evidence.

The defendants have filed a joint brief. Their argument that the action should have been nonsuited is based upon three grounds. First, that the plaintiff has neither alleged, nor offered evidence tending to show that his lessor was a riparian owner, or had acquired in some way riparian rights in the waters of Beaverdam Creek, and if they, or either of them polluted the waters of the Creek, they breached no duty as to him. Second, if there was a breach of duty, it was not the proximate cause of plaintiff's damage. And third, if they, or either of them, proximately caused plaintiff's damages, then the plaintiff is barred from recovery by his contributory negligence as a matter of law.

A riparian proprietor is an owner of land in actual contact with the water; proximity without contact is unsufficient. An indispensable requisite of the riparian doctrine is actual contact of land with water. Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 13 S. Ct. 110, 36 L. Ed. 1018 at page 1040; Stratbucker v. Junge, 153 Neb. 885, 46 N.W.2d 486; Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781, 60 L.R.A. 889, 108 Am.St.Rep. 647; Hilt v. Weber, 252 Mich. 198, 233 N.W. 159, 71 A.L.R. 1238; 56 Am.Jur., Waters, 731; 67 C.J., Waters, 685; Coulson v. Forbes, Waters and Land Drainage, 5th Ed., pp. 110-111.

In Lyon v. Fishmongers (1876), L.R. 1 App.Cas. 662, p. 683, Lord Selborne said: "It is, of course, necessary for the existence of a riparian right that the land should be *412 in contact with the flow of the stream * * * "

Plaintiff in his Complaint does not allege the description of the 11 or 12 acre tract of land R. F. Young purchased from S. K. Young and wife. The sole description of the location of the land leased by plaintiff is of the 3 acre tract, and is contained in Paragraph 12 of his Complaint reading as follows:

"That on said 1st day of September, 1953, this plaintiff had under lease from R. F. Young a certain parcel or tract of land consisting of 12 acres, a part of which said acreage was deeded to the said R. F. Young by J. H. Brittain and Forrest Brittain by deed dated the 5th day of December, 1915, and recorded in the Office of the Register of Deeds of Buncombe County in Deed Book 205, page 168, and more particularly described as follows: "A certain piece, parcel or lot of land, situate, lying and being in Asheville Township and Beaverdam Ward, and on Beaverdam Creek and joining lands of J. H. Brittain and R. F. Young, and bounded and more particularly described as follows: "Beginning at a stake on west side of branch, said stake being the 3rd corner from spring and the J. H. Brittain Home Tract, also R. F. Young's corner, and runs with said Young's naked line S. 67 deg. 30' W. 495 feet to a Black Oak; thence with the Vance old Line n. 10 deg. 40' 292.6 to stake 25 ft. N. of the middle of the Craggy Mt. RR; thence parallel to 25 ft. from the center of said RR as follows: N. 35 deg. E. 100 ft. N. 50 deg. E. 50 ft. N. 70 deg. E. 50 ft. E. 100 ft. South 86 deg. 30' E. 185 ft. to a stake situated 25 ft. from the middle of said RR; thence South 4 deg. 191½ feet to the Beginning, containing three acres more or less."

Plaintiff says in his Brief that he has alleged a riparian ownership in Paragraphs 12 and 16 of his Complaint. Paragraph 16 reads as follows:

"That the aforementioned property and the irrigation system located thereon lie below and to the west or northwest of the aforementioned pollution and contamination and that as a result thereof the aforementioned polluted waters of Beaverdam Creek, on or about the 1st day of September, 1953, were picked up by said irrigation system and sprayed upon the crops belonging to this plaintiff and being grown upon the aforementioned 12 acres, including a large quantity of collards and cabbages which this plaintiff was producing for public sale as his livelihood."

Plaintiff's evidence as to the location in reference to Beaverdam Creek of the land leased by him from R. F. Young comes from his witness R. F. Young, largely on cross-examination, and himself. R. F. Young's testimony tends to show these facts: He owns 20 acres of land in the Newbridge area on Beaverdam Creek. He used the acreage on the Creek to grow vegetables. On cross-examination by the City he said he bought the 3 acre tract of land from the Brittains, the 11 or 12 acres south of the three acres from S. K. Young and wife, and about one acre of woodland on the road from Verne Rhoades. On cross-examination by the District he testified: "I know about the railroad that runs down to Elk Mountain and the Creek. That railroad runs right between my threeacre tract and the Creek. It is a standard gauge railroad. I didn't say there was no cabbages on this three-acre tract; there was. The pump house is down at the foot of the hill. The cabbages was up on the hill from the pump house. There was a water line running from the pump house up to the top of the hill. This overhead irrigation system is up on top of the hill. The pump is down at the foot of the hill. The water line runs from the pump house to near the top of the hill, then starts the overhead irrigation. The pump house is about 100 yards or something like that up to and from where the irrigation starts. The railroad I speak of was between my land and the pump house and the creek. Mr. Verne Rhoades owns that land in there between my *413 three acres and the creek, that is, last year he owned it, and he still owns it. I guess my property line runs to the creek, as well as I know, with just the railroad between us there. Q. You said a moment ago that Verne Rhoades owns the land between your property line and A. (Interrupting) On the other side of the creek. I don't know whether my deed calls for 25 feet of the railroad. Q. Doesn't your deed call for 25 feet from the railroad and running parallel with it? A. There is a deed. I don't know whether it calls for the creek or the center of the railroad. You can read it. My property goes on down the other side over there. The only property that I have got there near that was the three acres that I got from Mr. Brittain, that is the nearest at that point. Whatever the Brittain deed says is what I have there." On redirectexamination he said: "The Verne Rhoades property runs up and down the creek; it is on the north side. My property is more on the south side. This is my deed for the Brittain property. Mr. Verne Rhoades has owned the north bank for approximately 15 or 20 years. Q. During the time that that pump has been in have you been in continuous possession of it all that time? Objectionoverruledexception. Exception No. 11. A. Yes, I have been in possession of it." On recross-examination he said: "I have a fence between the pump house and the railroad to keep my stock in. Q. That fence goes along the northern line of your tract of land? A. It goes along the line of the railroad there. Q. It goes along your line? A. No, I don't know. It lacks quite a little bit of being on the line so far as I know."

Plaintiff's testimony is to this effect: In 1953 he leased from his father, R. F. Young, 12 acres of land "on Beaverdam Creek." On cross-examination by the City plaintiff said: "There is a railroad track just north of this 12 acre tract that I had under cultivation. That railroad track is between my twelve acres and the Creek; it comes to the tract that my father bought * * *. From the pump house to the railroad tracks it is 25 or 30 feet, maybe further * * * I couldn't tell you exactly how far it is from the pump house to the Creek. It is somewhere in the neighborhood of 100 feet. Along the north side of the property under cultivation part of it is under fence and part of it is not. Part of the fence is on the south side of the railroad track, and part there is no fence. All the south side of the railroad, part is fenced and part is not."

The Complaint in the Ballentine Case against R. F. Young and plaintiff is plaintiff's Exhibit 3. No answer to this Complaint is in the Record. In that Complaint the land upon which plaintiff was growing cabbages and collards is described as "near Beaverdam Creek," and it further alleges "that said defendants through various mechanical devices and pipes are pumping water from Beaverdam Creek from a point approximately 800 feet from that area where the cabbages are being raised through a series of pipes to said area where the cabbages are being raised to irrigate same."

There is no evidence of the defendants of which the plaintiff can avail himself to show whether the land leased by him had actual contact with the water of Beaverdam Creek.

This Court said in Von Herff v. Richardson, 192 N.C. 595, 135 S.E. 533, 534, in respect to description of land in a deed: "But as between two descriptions, the law ordinarily prefers the specific to the general, or that which is more certain to that which is less certain."

The specific description in the deed of the 3 acre tract is not ambiguous or insufficient, nor is there a reference in the general description to a fuller and more accurate description of the land, so as to require the general description to control the specific description under the principles stated in Lee v. McDonald, 230 N.C. 517, 53 S.E.2d 845; Quelch v. Futch, 172 N.C. 316, 90 S.E. 259.

In Prentice v. Northern Pac. R. Co., 154 U.S. 163, 164, 14 S. Ct. 997, 38 L. Ed. 947, the second headnote is: "Where, in a deed, there is a specific description, by metes and bounds, of the lands conveyed, other words therein intended to describe generally the *414 same lands, do not vary or enlarge the specific description." See also Lee v. McDonald, supra.

The specific description of the 3 acre tract of land controls, and the boundary line called for in the specific description is the track of the railroad, and not Beaverdam Creek. Therefore, the plaintiff has not alleged that his lessor is a riparian proprietor, and he has no better rights than his lessor. See Durham v. Eno Cotton Mills, 141 N.C. 615, at page 627, 54 S.E. 453, 457, 7 L.R.A.,N.S., 321, where it is said: "They do not allege that the city of Durham is the owner of any part of the banks of that stream * * *."

It is a serious question as to whether plaintiff's evidence tends to show that his lessor is a riparian proprietor. It is not necessary for us to decide that question, because proof without allegation is insufficient. Aiken v. Sanderford, 236 N.C. 760, 73 S.E.2d 911.

If plaintiff had had allegata and probata that his lessor was a riparian proprietor as to the 3 acre tract of land, quaere, would this right extend or attach to the 11 or 12 acres R. F. Young purchased from S. K. Young and wife south of the 3 acre tract? 56 Am.Jur., Waters, 732; Annotation 14 A.L.R. 330; Annotation 54 A.L.R. 1411.

Paragraph 15 of plaintiff's Complaint reads as follows: "That in addition to the foregoing, this plaintiff's lessor, R. F. Young, procured and was granted authority and license by one Sol Carter, riparian owner of the north bank of said Beaverdam Creek at the location of said irrigation intake and pump house, to locate the intake for said irrigation system in said creek and to use the waters of said creek for irrigation purposes about the year 1935 and said authority and license has continued since said date and has been ratified from time to time by the successors in title of the said Sol Carter." Plaintiff has offered no evidence to support the allegations of this paragraph of his Complaint. If R. F. Young, plaintiff's lessor, was a riparian owner, why did plaintiff allege that R. F. Young procured from Sol Carter, a riparian owner, authority and license to use the waters of Beaverdam Creek? Quaere, can a riparian owner transfer his riparian rights to a nonriparian owner? Mt. Shasta Power Corporation v. McArthur, 109 Cal. App. 171, 292 P. 549; Harvey Realty Co. v. Borough of Wallingford, 111 Conn. 352, 150 A. 60; Hendrix v. Roberts Marble Co., 175 Ga. 389, 165 S.E. 223.

Paragraphs 13 and 14 of plaintiff's Complaint are as follows:

"That located on said aforementioned 3acre tract of land was a pump house and irrigating system owned by the said R. F. Young and leased to this plaintiff, by which for many years the said R. F. Young, or this plaintiff as lessee, had pumped waters from the aforementioned Beaverdam Creek onto the aforementioned three-acre tract and adjacent property owned by the said R. F. Young for the purpose of irrigating crops grown thereon.

"That said irrigation system located on said property and taking water from the aforementioned Beaverdam Creek, has been used by the said R. F. Young, or this plaintiff as lessee, for many years and its existence, location and use was well known to the defendants and their employees and representatives."

"It is generally recognized that, subject to certain exceptions and limitations hereinafter noted, title to water or a water right may be acquired by prescription or adverse user." 56 Am.Jur., Waters, Sec. 323. It seems that it is not necessary that a claimant to water rights by prescription or adverse user should be a riparian owner on the stream. 67 C.J., Waters, 953.

"The user on which a prescriptive right is claimed may be either by claimant himself or by one holding under him, such as a lessee or tenant." 67 C.J., Waters, 937-938.

The adverse user of water, in order to ripen into a right to use, must be visible, notorious, continuous, adverse and under a *415 claim of right for the period required to acquire rights in real property adversely to the owner. 2 Farnham, Waters and Water Rights, Secs. 537-541; 56 Am.Jur., Waters, Sec. 326 et seq.; 67 C.J., Waters, Secs. 395-402.

It is said in 67 C.J., Waters, 1058: "Where plaintiff claims as appropriator, he should allege the fact of appropriation, describe the lands in connection with which or for the benefit of which his appropriation was made, and show the need of the water and the amount which he uses or to which he claims to be entitled."

In Cannon v. Atlantic Coast Line R. Co., 97 S.C. 233, 81 S.E. 476, an allegation in the Complaint that ditches obstructed by the construction of a railroad had been used to drain the lands occupied by plaintiff, including the place upon which plaintiff planted his cabbages, for more than 20 years, was held not sufficient to allege a prescriptive right to the use of such ditches without an allegation that the user was adverse.

In Durham v. Cotton Mills, supra, the City of Durham and its inhabitants for the past 17 or 18 years had been supplied with drinking water from a plant located on Eno River. The Court stated, 141 N.C. at page 627, 54 S.E. at page 457: "There is nothing in this case, as now presented, which tends to prove that the plaintiffs are riparian proprietors in respect to the Eno river."

The plaintiff has neither allegation nor proof that he, or his lessor, has acquired a right to use the water of Beaverdam Creek by prescription or adverse user.

The plaintiff has no allegation in his Complaint that he or his lessor is a riparian proprietor; neither allegation nor proof that he or his lessor have acquired a right to use the waters of Beaverdam Creek to irrigate his crops by prescription or adverse user; nor proof that he or his lessor have authority and license from Sol Carter, an alleged riparian owner, and his successors in title, to use the waters of Beaverdam Creek for the purposes of irrigation, even if such alleged authority and license were valid, about which we express no opinion. Therefore, the plaintiff has not shown that he or his lessor have a right to have the waters of Beaverdam Creek flow with undiminished quantity and unimpaired quality. Durham v. Cotton Mills, supra, 141 N.C. at page 627, 54 S.E. 453. Cook v. Mebane, 191 N.C. 1, 131 S.E. 407; Dunlap v. Carolina Power & Light Co., 212 N.C. 814, 195 S.E. 43.

Plaintiff's evidence, and also the defendants', shows that the defendants, both municipal corporations, have negligently permitted sewage to pollute to a large extent the waters of Beaverdam Creek. This Court said in Sandlin v. City of Wilmington, 185 N.C. 257, 116 S.E. 733, 735: "A municipal corporation has no more right than an individual to maintain a nuisance, and is equally liable for damages resulting therefrom; and authorized acts of a governmental character which create a nuisance causing damage to a private owner are regarded and dealt with as an appropriation of property to the extent of the injury thereby inflicted." This Court also said in Clinard v. Town of Kernersville, 215 N.C. 745, at page 748, 3 S.E.2d 267, at page 270: "The liability of the town is not to be determined by any negligent conduct on its part in the operation of its disposal plant. If in so doing it in fact discharges foul matter upon the lands of the plaintiffs, or it so pollutes the water of the stream which crosses plaintiffs' land that foul and noxious odors emanate therefrom it is liable for the resulting damage, even though in so doing it is exercising a governmental function."

In Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292, 296, 91 A.L.R. 752a case cited in the briefs of appellants and appellee herethe Court said: "A stream wholly on the land of another which has been polluted by the owner or any other person is not a nuisance per se to one who is not a riparian owner; as to such person it is not a nuisance unless his rights are invaded by the pollution; they may or may not be."

*416 These are cases of an invasion of property rights: Williams v. Town of Greenville, 130 N.C. 93, 40 S.E. 977, 57 L.R.A. 207 (drain choked with refuse by negligence of municipal corporation overflows premises of adjacent landowner); McManus v. Southern R. Co., 150 N.C. 655, 64 S.E. 766 (blasting rock and throwing pieces of rock on plaintiff's house and loathsome and nauseous odors from rock quarry, containing dead animals and other refuse, spreading over plaintiff's land); Moser v. City of Burlington, 162 N.C. 141, 78 S.E. 74 (sewage from defendant's sewage system in time of freshet brought down and lodged upon lands of plaintiff, causing offensive odors); Hines v. City of Rocky Mount, 162 N.C. 409, 78 S.E. 510, L.R.A.1915C, 751 (foul stench and odors); Donnell v. City of Greensboro, 164 N.C. 330, 80 S.E. 377 (offensive matter cast upon plaintiff's bottom-lands and offensive odors); Rhodes v. City of Durham, 165 N.C. 679, 81 S.E. 938 (foul odors); Sandlin v. Wilmington, supra (overflow of sewage upon land and consequent deposit thereon of refuse and noxious sediment causing vile odors); Ivester v. Winston-Salem, 215 N.C. 1, 1 S.E.2d 88 (foul odors).

Stowe v. City of Gastonia, 231 N.C. 157, 56 S.E.2d 413, is not in point, because there was an allegation in the Complaint that the waters of the Creek flowed through plaintiff's lands, which would seem to indicate plaintiff is a riparian owner. Neither is Hampton v. North Carolina Pulp Co., 223 N.C. 535, 27 S.E.2d 538, in point, as plaintiff was a riparian owner.

Plaintiff cites in his brief Midland Oil Co. v. Ball, 115 Okl. 229, 242 P. 161. In that case water supply in a pasture inclosed by fences and in possession of plaintiff was polluted by oil and salt water making the water unfit for cattle to drink. As a result of drinking this polluted water some of plaintiff's cattle died, and others were injured. A recovery was sustained, and properly so, because here was an invasion of plaintiff's possession and rights.

In the present case not one drop of the polluted waters of Beaverdam Creek fell upon plaintiff's cabbages and collards by any act of the defendants. The plaintiff, or his lessor, not being a riparian proprietor, and not having riparian rights, and not having a right to use the waters of Beaverdam Creek by prescription or adverse user, had his pump house about 100 feet from the waters of this Creek, and pumped the waters of the Creek into his overhead irrigation system sprinkling and spraying the water on his cabbages and collards growing up on top of the hillto quote a vivid phrase of the Psalmistin "a dry and thirsty land," even farther than the pump house from the waters of Beaverdam Creek. There has been no invasionof his rights by the defendants: their pollution of Beaverdam Creek did not cause his damage.

It is elementary learning that there must be both allegation and proof, Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147; and if a plaintiff is to succeed at all, he must do so on the case set up in his Complaint. Sale v. State Highway & Public Works Commission, 238 N.C. 599, 78 S.E.2d 724.

For the reason stated above the motions for judgment of nonsuit should have been allowed. It, therefore, follows that the judgment below must be reversed, and it is so ordered.

Reversed.

BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.