Opinion
(September Term, 1892.)
Contract — Ponding Water on Land.
H. agreed with T. that the latter might pond water upon H.'s land by the erection of a dam of prescribed dimensions: Held, that T.'s rights under the contract were not exhausted by the erection of one dam, but he might maintain a dam at that place by the erection of new ones from time to time.
ACTION tried before Connor, J., and a jury, at August Term, (181) 1892, of ORANGE. (See same case, 110 N.C. 292.)
J. W. Graham for plaintiffs.
J. S. Manning for defendants.
Judgment was rendered for plaintiffs, and defendants appealed. (182)
The following is the agreement sued upon:
"Articles of agreement made and entered into this 13 March, 1873, between L. W. Hall, of the county of Orange and State of North Carolina, of the one part, and Evans Turner, of the county and state aforesaid, of the other part, witnesseth, that the said L. W. Hall agrees and consents for the said Evans Turner to back water, if necessary, up into his field, on condition that the said Evans Turner will allow the said L. W. Hall as much woodland along the line fence south of the road. Said Turner is allowed to raise a dam eight or nine feet high.
This agreement to remain good so as long as the said Turner keeps up a mill at the Wagoner place, afterwards to be null and void."
Witness our hands and seals the day and date above written.
L. W. HALL, [Seal.] EVANS TURNER [Seal.]
Even had there been a misjoinder of causes of action, it could not have been taken advantage of by demurrer until the defendants had withdrawn their answer. Burns v. Ashworth, 72 N.C. 496; Finley v. Hayes, 81 N.C. 368. The plaintiffs were entitled to recover any damages caused by erecting a dam higher than nine feet.
The court correctly ruled that "the right of the defendant (183) ancestor and intestate Evans Turner was not exhausted by the building of one dam, but that he had the right to keep up and maintain a dam, and, if necessary to do so, to erect a second dam to the height of nine feet."
We have considered the other exceptions, and they also are without merit.
AFFIRMED.
Cited: Hocutt v. R. R., 124 N.C. 216; Teague v. Collins, 134 N.C. 64.