Durden v. . Simmons
Supreme Court of North Carolina
PROCEEDING to assess damages alleged to have resulted from drainage, heard at Spring Term, 1880, of Martin Superior court, before Graves, J. The plaintiff instituted this proceeding, by summons returnable before the clerk, against tlie defendant as owner of a tract of land adjoining his own, and of a lower level, to obtain a right of drainage by cutting a canal through it.
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PROCEEDING to assess damages alleged to have resulted from drainage, heard at Spring Term, 1880, of Martin Superior court, before Graves, J. The plaintiff instituted this proceeding, by summons returnable before the clerk, against tlie defendant as owner of a tract of land adjoining his own, and of a lower level, to obtain a right of drainage by cutting a canal through it. In his complaint he alleges title in himself to the land to be drained, the superabundant waters resting on which flowed through a natural drain or ditch over the land of the defendant and relieved his own until August,…
1Opinion of the Court
Smith, C. J.,
after stating the case. Undoubtedly a case should be constituted between proprietors of adjoining lands before the appointment of commissioners, and if the legal effect of the pleadings is to raise an issue as to the title of either party to their respective tracts, the controverted fact should be determined before any further action. If the plaintiff does not own the land to be relieved, he can proceed against no one; and if he is the owner, he cannot proceed against one who does not own the land to. be rendered subservient to the proposed easement, and possesses no interest in…
2Cases cited1 opinion
- Bunting v. . StancillSupreme Court of North Carolina · 1878
3Cited by7 opinions
- Cobb v. Clegg.Supreme Court of North Carolina · 1904
- Porter v. ArmstrongSupreme Court of North Carolina · 1904
- Carolina & Northwestern Railway Co. v. Pennearden Lumber & M'f'g Co.Supreme Court of North Carolina · 1903
- Rumbough v. Southern Improvement Co.Supreme Court of North Carolina · 1890
- Winslow v. . WinslowSupreme Court of North Carolina · 1886
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