Letterman v. English Mica Company

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107 S.E.2d 753 (1959)

249 N.C. 769

Vivian Edney LETTERMAN and husband, Charles Letterman; C. R. Edney and wife, Dolley Washburn Edney, v. ENGLISH MICA COMPANY and Harris Clay Company.

No. 307.

Supreme Court of North Carolina.

March 25, 1959.

R. W. Wilson, Burnsville, for plaintiffs-appellants.

McBee & McBee, Spruce Pine, G. D. Bailey and W. E. Anglin, Burnsville, for defendant-appellee English Mica Co.

MOORE, Justice.

Plaintiffs contend that they alleged sufficient facts to constitute a cause of action for a continuing trespass on the part of English Mica Company on their land and roadways.

"At common law, every man's land was deemed to be inclosed, so that every unwarrantable entry on such land necessarily carried with it some damage for which the trespasser was liable. Any entry on land in the peaceable possession of another is deemed a trespass, without regard to the amount of force used, and neither the form of the instrumentality by which the close is broken nor the extent of the damages is material. * * * whether the defendant acted intentionally is immaterial; trespass lies whether the injury to the plaintiff's possession is wilful or not, if the act which is injurious to the plaintiff is the immediate result of the force originally applied by the defendant." 52 Am.Jur., Trespass, Sec. 12, pp. 844, 845.

In Kinsland v. Kinsland, 188 N.C. 810, 125 S.E. 625, 626, it is alleged that the defendants entered upon plaintiff's land, built a dam and flooded a portion of the land. *756 The court, holding that there was an issue for the jury, said: "The unauthorized entry upon the possession of another entitles him to nominal damages at least (Lee v. Lee, 180 N.C. 86, 104 S.E. 76), and it may be such as to evoke the equitable jurisdiction of the courts, or it may result in the creation of a nuisance which the law will abate."

"As a general rule, the proprietor of a dam which has been lawfully constructed and maintained is not an insurer of the safety thereof, but is required to exercise ordinary care, in the maintenance and operation thereof, to avoid injury to others." 56 Am.Jur., Waters, Sec. 162, p. 629. "It may be that when a dam is first built that it will not injuriously affect land some distance from it, and for a long time there will be no cause for them to complain, but when the pond, made by the dam fills with mud, sand, trash, and other things, causes overflows and injury to lands, then the parties injured have a cause of action, if the buildings and maintenance of the dam is the direct and proximate cause of their injury." McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 78 S.E. 980, 981, 6 A.L.R. 1321, 1323. But the owner of a dam is not responsible for injuries occasioned by causes which could not reasonably be anticipated or guarded against. 56 Am.Jur., Waters, Sec. 31, p. 560; Cline v. Baker, 118 N.C. 780, 24 S.E. 516.

It is our opinion that the plaintiffs have not alleged sufficient facts to show that the injuries suffered "is the immediate result of * * * force originally applied by the defendant" or that any act or omission of English Mica Company is a "direct and proximate cause of their injury."

A demurrer for the purpose of challenging the sufficiency of the pleading, admits the truth of the facts alleged and the relevant inferences of fact deducible therefrom, but the demurrer does not admit inferences or conclusions of law. Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384.

As against the demurring defendant, the plaintiffs allege that the dam was built by one Ray Dent in 1938, and as long as Ray Dent owned and maintained the dam it did not back water at normal times on plaintiffs' property, that Ray Dent sold it to English Mica Company in 1941; that English Mica Company breached the provisions of its easement, knew that Harris Clay Company was putting excessive dirt in the river which was coming downstream and settling in the still water impounded by the dam, wrongfully and negligently maintained the dam and thereby caused the water to back upon the land and roadways of plaintiffs.

The complaint does not allege that the dirt was being deposited in the river at the time the dam was built. The inference is to the contrary. It alleges in substance that the dam was being properly maintained when Ray Dent owned it, but does not allege in what respect it has been maintained differently by English Mica Company. It does not allege in what manner defendant has breached the provisions of its easement, or of what its wrongful and negligent maintenance consists. It does not allege in what way defendant could have prevented the backing of the water or what its duty is with respect thereto. It is silent as to the construction and use of the dam. It alleges no violation of G.S. ยง 77-7, if any there was.

The doctrine of res ipsa loquitur does not apply in this case. It does not come within the principles laid down in Springs v. Doll, 197 N.C. 240, 148 S.E. 251.

One fact seems clear from the pleading. The Harris Clay Company has dumped dirt into the river. The dirt has flowed down to the still water of the dam, raised the bed of the stream and caused water to back onto the plaintiffs' land and roadways. This is insufficient allegation to place responsibility on English Mica Company.

*757 Plaintiffs cite Moses v. Town of Morganton, 192 N.C. 102, 133 S.E. 421, in support of their contention. It is clearly distinguishable. In that case the dam was built after the stream had already been polluted by the city sewer and by chemicals from the factory of the shoe company. The dam immediately upon construction backed the polluted water onto plaintiff's land.

The defendant English Mica Company properly demurred.

Affirmed.