Barcliff v. Norfolk Southern Railroad
Supreme Court of North Carolina
ActioN tried before Bond, J., and a jury, at February Term, 1918, of Pasquotank. Tbis case was here before, and was reported in 168 N. C., 268. Tbe action was brought to recover damages for injuries caused by diverting surface water and ponding, it on plaintiff’s land.
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ActioN tried before Bond, J., and a jury, at February Term, 1918, of Pasquotank. Tbis case was here before, and was reported in 168 N. C., 268. Tbe action was brought to recover damages for injuries caused by diverting surface water and ponding, it on plaintiff’s land. Tbe former action was for tbe same cause, tbe only difference between tbe two being tbe allegation in tbis action tbat, since tbe former verdict and judgment for permanent damages, at November Term, 1914, tbe defendant, in tbe year 1915, widened and deepened tbe ditcb or drain flowing through its culvert, and thereby caused…
1Opinion of the Court
Walker, J.,
after stating tbe case: Tbe verdict of tbe jury shows tbat there has been no change in tbe facts since tbe former judgment was rendered — tbat is, no additional cause of damage. Assuming tbat tbis is not a case in which permanent damages could be assessed without tbe consent of tbe plaintiff, it appears tbat in tbe first case be deliberately amended bis complaint for tbe purpose of having such damages assessed, and be having thus made bis election, which was entirely voluntary, and tbe case having been tried on tbat theory, and a judgment for permanent damages — tbat is, all…
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