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Hooper v. City of Wilmington

Filed: August 7, 1979.

JOSEPH W. HOOPER, JR., AND WIFE, NELL T. HOOPER, PLAINTIFFS
v.
CITY OF WILMINGTON, NORTH CAROLINA, DEFENDANT



Appeal by defendant from Rouse, Judge. Judgment entered 24 March 1978 in Superior Court, New Hanover County. Heard in the Court of Appeals 15 June 1979.

Clark, Judge. Judges Mitchell and Erwin concur.

Clark

Defendant first assigns as error the court's finding of fact that the defendant had adopted, controlled and maintained Jumping Run Branch, since there was no evidence tending to show that the Branch had been dedicated to the City and evidence that the City adopted and controlled the Branch where it intersected with city streets does not constitute an adoption of the entire Branch.

"[T]he general rule is that a municipality becomes responsible for maintenance, and liable for injuries resulting from a want of due care in respect to upkeep, of drains and culverts constructed by third persons when, and only when, they are adopted as a part of its drainage system, or the municipality assumes control and management thereof. (Citations omitted.) Accordingly, there is no municipal responsibility for maintenance and upkeep of drains and culverts constructed by third persons for their own convenience and the better enjoyment of their property unless such facilities be accepted or controlled in some legal manner by the municipality. . . ."

Johnson v. Winston-Salem, 239 N.C. 697, 707, 81 S.E.2d 153, 160 (1954). 63 C.J.S. Municipal Corporations § 877 (1950). In Mitchell v. City of High Point, 31 N.C. App. 71, 228 S.E.2d 634 (1976), this Court held that evidence that the City controlled a culvert downstream from plaintiffs' property "does not mean that the City adopted the stream nor did it constitute a dedication of a private stream to public use." 31 N.C. App. at 74, 228 S.E.2d at 636. In the case sub judice, however, there is considerably more evidence of control over the entire stream than was present in Mitchell. Mr. Coleman testified that the Branch was a part of the City's drainage system. The city controlled all drains and culverts

above and below the plaintiffs' property in that drainage basin. Other city owned ditches drained into the Branch above plaintiffs' property. Coleman admitted that the City "used" the entire branch. Plaintiffs' Exhibit No. 30, a 1975 report of the City's drainage facilities prepared by Hazen and Sawyer, indicates that the Branch was part of the Greenfield Lake Drainage Basin. The report refers to the Branch as a sub-basin. In addition, Tyson testified that city work crews had regularly snagged and worked the Branch above and below plaintiffs' property. After a careful review of the record and plaintiffs' exhibits, we hold that there is ample evidence to support the findings of the trial court that the city had adopted, managed and controlled the entire Branch.

Defendant also contends that the court erred in concluding as a matter of law that the City had a duty to exercise due care and failed to do so. Defendant contends that a municipality is only held liable for private damage in instances of culvert failure, for blockage causing water to back up, or for diversion of water onto private property. This contention is without merit. Assuming that a municipality has adopted an open drainage ditch as part of its drainage system "it may become liable for injury caused by its negligence in the control of the water. Where a city adopts a natural water course for sewage or drainage purposes, it has the duty to keep it in proper condition and free from obstructions, and it is liable for damage resulting therefrom." Milner Hotels, Inc. v. Raleigh, 268 N.C. 535, 151 S.E.2d 35 (1966). Since we have affirmed the trial court's conclusion that the City adopted the entire branch, we conclude that the defendant had a duty to use due care in controlling the water in the Branch and is liable for erosion damage to private property proximately caused by the negligence of the municipality.

Defendant also contends that there is no evidence to support the court's finding of negligence. The evidence tends to show that the City received notice of the erosion problem as early as 1966. Several studies were conducted by the City to determine a means of preventing the erosion and several recommendations were made. The City, however, took no steps to prevent the erosion. This evidence is sufficient to support the court's finding of negligence.

Defendant further argues that there is insufficient evidence to establish that the damage was proximately caused by defendant's negligence. Defendant contends that increased runoff from the area due to land development caused the erosion to plaintiffs' property.

On appeal, the court's findings of fact are conclusive if supported by any competent evidence, and a judgment supported by such findings will be affirmed even though there is evidence contra. Cogdill v. North Carolina State Highway Commission, 279 N.C. 313, 182 S.E.2d 373 (1971); Fast v. Gulley, 271 N.C. 208, 155 S.E.2d 507 (1967). 1 Strong's N.C. Index 3d Appeal and Error § 57.2 (1976). Plaintiffs presented Mr. Andrews, Director of Engineering and Services for the City of Wilmington, called as an adverse witness, who testified that the erosion was caused by the scouring action of the flow of water around the bend at plaintiffs' property, and that increased velocity of the water increased erosion, and the velocity is controlled by the size of culverts and pipes. Pipes placed upstream could have increased the velocity of the water flowing in the Branch and the size of the pipe at the outfall behind plaintiffs' property could also increase the velocity of the water. John D. Grady, a consulting engineer, testified that the natural drainage in the Branch had changed since 1964. The culvert above plaintiffs' property was not large enough to adequately control the flow of water. Installation of pipes at Gillette Drive located below plaintiffs' property compounded the problem by increasing the velocity of the water flowing past the plaintiffs' property. The Brookhaven Drive outfall pipe altered the natural drainage pattern and contributed to the erosion. The plaintiffs presented sufficient evidence to support the court's findings that the City's negligence had proximately caused the erosion damage to plaintiffs' property. Defendant's assignment of error is overruled.

We have carefully examined and considered defendant's other assignments of error, which relate primarily to evidentiary matters in light of the rule that the findings by the court are conclusive if supported by ...


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