FURCHES, C. J., and CLARK, J., dissenting. It is evident from the above statement of the case on appeal that there was no natural drainway for the basin in the road across the land of the defendant. Natural drainage is where water runs in a state of nature without artificial assistance. The mere fact that it would require the digging of a ditch 70 yards long to carry the water onto the defendant's land would show that it did not go there naturally. Even then it would not reach a natural watercourse, nor even an artificial waterway, but would be turned loose in a low place upon the defendant's land, to his manifest injury. He would be compelled to let it lie there, ruining his crops and destroying the value of his land, or dig another ditch 400 yards long through the land (735) of another man. It seems that the overseer could have relieved the road of all water by cutting a ditch 35 yards long and 2 feet deep through his own land on the opposite side of the road, but he preferred to dig 70 yards of ditch upon another man's land than 30 yards upon his own land. In this he showed fine business sense; but has he the right to thus appropriate the land of another, without compensation, and, as far as we can see, without authority of law? We all know that a ditch is always more or less of a nuisance. It is frequently a necessary nuisance, but a nuisance none the less. It divides a field so that a man can not get from one side to the other without building bridges or ruining the ditch. It takes up not only the land occupied by the ditch itself, but generally much more with its banks and the weeds and briers that always grow on ditch banks. It is true, these banks can be kept clean, but this requires much additional labor and expense. It thus appears that digging a ditch through the land of another is not only an appropriation of a certain part of the land, but is a direct injury to the remainder. Suppose the overseer had dug this ditch, how would the defendant have obtained compensation? No way has been called to our attention, except an action for the trespass, and this it would be difficult to maintain if the overseer had a right to cut the ditch. If he had no right to cut it, the defendant is not liable to indictment for stopping him.
There is no authority either for entry or compensation under chapter 581, Laws 1899, because section 27 thereof expressly provides that this act shall not apply to Sampson County, and there is neither proof nor allegation that Sampson County has adopted said act, or any part thereof, even if it could lawfully do so. The only sections in The Code that we find applicable to the question are 2025, 2027 and 2040. Section 2025 provides that "Where, by the overseers, it may be (736) deemed expedient to make or repair causeways on the same, they shall be at least 14 feet wide; and earth, necessary to raise or cover them, shall be taken from either hand, so as to form a drain on each side of the causeway." *Page 504
Section 2027 provides that "Overseers may lawfully cut poles and other necessary timber for repairing and making bridges and causeways. And whenever earth shall be needed on a public road, and it can not be conveniently procured on either side of the causeway, the overseer may lawfully take the earth from any adjoining land."
Section 2040 is as follows: "All roads shall be laid out by a jury of five freeholders, to the greatest advantage of the inhabitants, and with as little prejudice as may be to lands and inclosures; which laying out, and such damage as private persons may sustain, shall be done and ascertained by the same jury on oath; and all damages by them assessed shall be deemed a county charge." Nowhere do we find any authority for cutting ditches into private property. On the contrary, it clearly appears that The Code contemplates the filling up of such slight depressions, and their drainage by lateral ditches on the side of the highway.
In the present case the standing water, when it stands at all, is only from 4 to 6 inches deep. This could easily be filled up, either with rock and dirt or by cross-laying with poles and piling dirt on them. This would permanently remedy the evil at little expense, and injure no one.
It would be an intolerable nuisance to permit every road overseer, in his unbridled discretion, to cut ditches through private property, whenever and wherever he saw fit, simply to drain mudholes in a road that he could easily fill up. If the highway were so located as to be absolutely incapable of drainage without draining through private property, it could be relocated, and perhaps an additional casement acquired, (737) under section 2040 of The Code; but no such question is before us.
The appropriation of private property to public uses has been so recently and so fully considered in Phillips v. Tel. Co., ante, 513; Mullenv. Canal Co., ante, 496; and Rice v. R. R., ante, 375, as to require but little further comment. It is well settled that private property can not be taken, even for a public use, without express legislative authority and the payment of adequate compensation. Any other appropriation would be in violation of the Declaration of Rights in the Constitution of North Carolina, and of the Fourteenth Amendment to the Constitution of the United States. Cornelius v. Glenn, 52 N.C. 512; Johnston v. Rankin, 70 N.C. 550;R. R. v. Chicago, 166 U.S. 226.
That this is the rule in other jurisdictions is shown by an examination of the authorities. In Gould on Waters the author says, in section 271: "An owner of land has no right to rid his land of surface water or superficially percolating water by collecting it in artificial channels and discharging it through or upon the lands of an adjoining proprietor. This is alike the rule of the common and civil law; and a municipal corporation has no greater right in this respect than a private landowner." In support of this proposition the learned author cites a long line of *Page 505 authorities from Indiana, Minnesota, New York, Maryland, New Jersey, Massachusetts, Colorado, Georgia, Pennsylvania, Illinois, Nebraska, West Virginia, Missouri and Wisconsin. In Lewis on Eminent Domain, the author says, in section 87: " . . . Causing water to flow upon land is a clear violation of the right of exclusive occupation and enjoyment, which can not be taken or interfered with without compensation." And again, in section 103: "Nevins v. Peoria, (41 Ill. 502), 89 Am. Dec., 392, is a leading case upon this question. The city of (738) Peoria graded its streets in such a manner as to cause a stream of water and mud to flow onto the plaintiff's property in times of rain, and also to cause a pond to accumulate upon adjacent property, which, by becoming stagnant, diffused unwholesome vapors over the plaintiff's premises. The city was held liable on the ground that the damages complained of were a taking, within the meaning of the Constitution. It was held that the city had no greater power over its streets than a private individual had over his own land, and that the law of adjacent proprietors was applicable. This is the true rule to be applied in all such cases." Preventing the digging of an unauthorized ditch and obstructing an existing ditch whereby the highway is flooded are essentially different.
Another interesting view is presented by this case: Suppose the plaintiff should sue the county for compensation, and the county should repudiate the act of the overseer as unauthorized, what remedy would he have? This Court has said that he can not sue the county for a tort. Shall it now say that he is indictable if he attempts to prevent a tort? Surely, one of two things must be true — either the overseer has no right to cut the ditch or the county must be held responsible for his act.
For misdirection of the jury by his Honor in the court below, a new trial is ordered.
New trial.