Wallace D. BOWLING and wife, Ella G. Bowling, and S. S. Royster, Trustee,
v.
The CITY OF OXFORD.
SOUTHERN RAILWAY COMPANY
v.
The CITY OF OXFORD.
No. 453.
Supreme Court of North Carolina.
June 16, 1966.*628 Royster & Royster, Oxford, for appellants Wallace D. Bowling and wife, Ella G. Bowling, and S. S. Royster, Trustee.
Royster & Royster, Hicks & Taylor, Oxford, and W. T. Joyner, Raleigh, for appellant Southern Railway Company.
Watkins & Edmundson, Oxford, and Zollicoffer & Zollicoffer, Henderson, for defendant appellee.
LAKE, Justice.
Upon a motion for judgment as of nonsuit the evidence offered by the plaintiff must be taken to be true and must be interpreted in the light most favorable to the plaintiff. Every reasonable inference favorable to the plaintiff must be drawn therefrom.
When a city or town engages in an activity which is not an exercise of its governmental function but is proprietary in nature, the city, like an individual or a privately owned corporation engaged in the same activity, is liable in damages for injury to persons or property due to its negligence or other wrongful act in the conduct of such activity. Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913; Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289; Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42. Barnhill, J., later C. J., speaking for the Court, in the Britt case said:
"[G]enerally speaking, the distinction is this: If the undertaking of the municipality is one in which only a governmental agency could engage, it is governmental in nature. It is proprietary and `private' when any corporation, individual, or group of individuals could do the same thing. Since, in either event, the undertaking must be for a public purpose, any proprietary enterprise must, of necessity, at least incidentally promote or protect the general health, safety, security, or general welfare of the residents of the municipality."
When a municipal corporation operates a system of waterworks for the sale by it of water for private consumption and use, it is acting in its proprietary or corporate capacity and is liable for injury or damage to the property of others to the same extent and upon the same basis as a privately owned water company would be. Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558; Faw v. Town of North Wilkesboro, 253 N.C. 406, 117 S.E.2d 14; Candler v. City of Asheville, 247 N.C. 398, 101 S.E.2d 470; Woodie v. Town of North Wilkesboro, 159 N.C. 353, 74 S.E. 924; McQuillan, Municipal Corporations, 3d ed., § 53.104; Dillon, Municipal Corporations, 5th ed., § 1631; 56 Am.Jur., Waterworks, § 38. There is no distinction, in this respect, between negligence, or other wrongful act, by the city in the construction or maintenance of the reservoir in which the water is impounded and like acts or omissions in the construction or maintenance of the system of mains and pipes by which the water is distributed to the consumers, both the reservoir and the distribution system being part of the water plant owned and maintained for the same commercial or proprietary purpose. See: Wiltse v. City of Red Wing, 99 Minn. 255, 109 N.W. 114; Bailey v. Mayor, etc., of New York, 3 Hill (N.Y. Sup.Ct.) 531; Dillon, Municipal Corporations, 5th ed., § 1669. It is also immaterial that one purpose of the reservoir or the water main is to supply water for fire protection or for washing the streets. See: Fisher v. City of New Bern, 140 N.C. 506, 53 S.E. 342, 5 L.R.A.,N.S. 542; McQuillan, op. cit., supra.
*629 Although there is authority to the contrary (Wiltse v. City of Red Wing, supra and Kitchen Lumber Co. v. Tallassee Power Co., 206 N.C. 515, 174 S.E. 427), one who constructs and maintains a dam to impound the waters of a river or other stream into a reservoir from which the water is to be distributed and sold is not an insurer against damage by the breaking of the dam and the escape of such water. Supervisor and Comrs. of Pickens County v. Jennings, 181 N.C. 393, 107 S.E. 312; 56 Am.Jur., Waters, § 170. He is not liable for such damage unless he was negligent in the original construction or subsequent maintenance of the dam. In Kitchen Lumber Co. v. Tallassee Power Co., supra, there was ample evidence of negligence by the defendant in opening gates on the dam so as to permit the escape of a huge torrent of water which washed out the plaintiff's bridge.
In Schloss v. Hallman, 255 N.C. 686, 122 S.E.2d 513, Denny, J., later C. J., speaking for the Court, said:
"In Restatement of the Law of Torts, section 166, page 394, it is said: `Except where the actor is engaged in an extrahazardous activity, an unintentional and non-negligent entry on land in the possession of another or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest.'"
Thus, though the water from the broken dam flooded over and damaged the properties of the plaintiffs, the city cannot be held liable for the resulting damage unless in the construction or maintenance of the dam the city was negligent.
In the annotation appearing in 11 A.L.R. 2d 1179, 1192, it is said:
"Dams on natural watercourses are usually deemed to be within the control of the owner, and the manner of their construction and care to be peculiarly within his knowledge, in such degree that evidence merely of the giving way of a dam maintained by the defendant, and the flooding of the plaintiff's lands as a result, calls for application of the rule res ipsa loquitur."
To the same effect see 93 C.J.S. Waters § 156. When applicable, this rule of res ipsa loquitur does not relieve the plaintiff from the burden of proving negligence by the defendant in the construction or maintenance of the dam. It does not create a presumption that the defendant was negligent. It merely makes proof of the facts that the dam broke and that damage to the plaintiff was proximately caused thereby sufficient to establish a prima facie case of injury by negligence so as to place upon the defendant the burden of going forward with evidence to explain the occurrence. White v. Hines, 182 N.C. 275, 109 S.E. 31.
We need not now determine whether the unexplained collapse of a dam, and injury to the property of the plaintiffs as the direct result thereof, is sufficient to call into play the rule of res ipsa loquitur and thus to withstand a motion for judgment as of nonsuit. In the record before us, there is evidence tending to show that, for a long period prior to the collapse of the dam, the defendant knew a sizable stream of water was running from a point at which the foot of this earthen dam rested upon the abutting hillside and also knew that water was seeping through the dam in the vicinity of the drain pipe. There is also evidence tending to show that, approximately a month prior to the collapse of the dam, the city was notified by the superintendent of a highway construction crew that water in sufficient volume to fill to half capacity two 24 inch culverts was flowing away from the foot of the dam and that its source was neither an escape of water through the valve of the drain pipe nor recent rainfall. There is also evidence tending to show that *630 for two days prior to the collapse of the dam the volume of water flowing away from the foot of it was increasing and was of a muddy color. This is sufficient to raise a question for determination by the jury as to whether a reasonable man in charge of such a dam would have taken action to locate and correct the leak. Whether such evidence is true and what, if any, inference is to be drawn therefrom must be determined by the jury. Viewing this evidence in the light most favorable to the plaintiffs and drawing therefrom all reasonable inferences in their favor, we reach the conclusion that the evidence is sufficient to support a finding that the city was negligent in its maintenance of the dam and that such negligence was the proximate cause of the breaking of the dam and of the damage to the properties of the plaintiffs.
G.S. § 1-53 and G.S. § 153-64 do not require the filing of a claim with the city before suit may be brought for damages for a tort committed by the city in a proprietary activity. Dennis v. City of Albemarle, 242 N.C. 263, 87 S.E.2d 561; reh. dism., 243 N.C. 221, 90 S.E.2d 532; Sugg v. Town of Greenville, 169 N.C. 606, 86 S.E. 695. It is, therefore, immaterial that the additional plaintiff, Royster, trustee in the deed of trust from the Bowlings, and the trustee in the deed of trust given by the Railway Company did not file claims with the city. Nor was it necessary that the trustee in the deed of trust given by the Railway Company be made a party to its action. Watkins v. Kaolin Mfg. Co., 131 N.C. 536, 42 S.E. 983, 60 L.R.A. 617. Although such trustee was a proper party and might have joined in the action by the Railway Company as a party plaintiff, just as the additional plaintiff Royster joined in the action by the Bowlings, he was not a necessary party to the action by the Railway Company. Furthermore, "`[i]f the defendant deemed the trustee a necessary party,' * * * `he should have demurred, and his failure to do so was a waiver.'" Lanier v. Pullman Co., 180 N.C. 406, 105 S.E. 21.
It was error to grant the motion for judgment as of nonsuit as to either plaintiff.
Reversed.
MOORE, J., not sitting.