The jury by their verdict find that the defendant, in constructing its road, wrongfully damaged the plaintiff's land by diverting the waters of Long Pond and Flat pocosin upon said (73) land, without providing an adequate outlet for said waters.
This case to some extent involves the right of the upper and lower tenants in draining land under common-law principles. That question was settled in Mizzell v. McGowan, 120 N.C. 134, in which it was held that the dominant tenant had the right to carry off his surface water by cutting ditches, by which the flow of water, naturally flowing therein, is increased and accelerated, and discharged on the land of the servient tenant, and that this subserviency is one of the natural incidents to the ownership of land. The question of diverting water was not then before the Court.
It has been previously held that neither a railroad nor an individual could divert water from its natural course and throw it upon abutting lower lands and cause damage. Jenkins v. R. R., 110 N.C. 438. It may now be stated that the upper holder may increase and accelerate the flow of the water in its natural course, but cannot divert other waters to the damage of the lower lands. Carter v. Page, 30 N.C. 190.
The purchase of the right of way by the defendant company could not confer any more privilege than a private individual purchasing the land would have. Jenkins v. R. R., supra.
There was conflicting evidence as to damages, and whatever we might think as a jury, we as the Court have no control over it.
Affirmed.
Cited: Hocutt v. R. R., 124 N.C. 219; Parks v. R. R., 143 N.C. 296. *Page 78
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