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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 07 August 2007
LAKEVIEW CONDOMINIUM ASSOCIATION,
an unincorporated association;
LYNNE GILBERT; ROSEMARY CLEAR;
PAM PALLADINO; THOMAS E. ROGERS;
and MALLORY HICKEY, in their
capacity as the LAKEVIEW
CONDOMINIUM ASSOCIATION BOARD OF
DIRECTORS; and JOAN FROST,
No. 04 CVS 718
THE VILLAGE OF PINEHURST,
a municipal corporation,
Appeal by defendant from judgment and orders entered 14
February 2006 by Judge L. Todd Burke in Moore County Superior
Court. Heard in the Court of Appeals 22 March 2007.
Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp, Esq.,
and Evelyn J. Mackrella, Esq., for plaintiffs-appellees.
Cranfill, Sumner & Hartzog, L.L.P., by Norwood P. Blanchard,
III, for defendant-appellant.
Where plaintiff landowner alleged that defendant municipality
negligently maintained culverts and drainage pipes in defendant's
right-of-way, such that plaintiff's property was damaged, the
reasonable use doctrine and the doctrine of riparian rights did not
apply. The appropriate measure of damages caused to plaintiff'sproperty was the reasonable cost of repair, not the diminution of
the property's value.
Lakeview Condominium Association (plaintiff), an association
of property owners in Pinehurst, North Carolina, owned a pond
adjacent to Lake Pinehurst, into which the storm water from a
culvert and a drainage pipe emptied from the right-of-way
maintained by the Village of Pinehurst (defendant). On two
occasions in April 2003, large deposits of sand washed into
plaintiff's pond from the culvert and drainage pipes. After the
rains in April, plaintiff contacted Roto-Rooter to remove the sand
deposit from the pond and the drainage pipe. Roto-Rooter removed
seven loads of sand per day for two weeks, at a cost to plaintiff
of $16,480.85. In August 2003, plaintiff had Roto-Rooter remove
sand from its pond again, at a cost of $9,303.93. Plaintiff
alleged that its total cost of repair to the pond, including the
bills from Roto-Rooter, was $50,890.53.
On 26 May 2004, plaintiff filed this action against defendant,
seeking monetary damages based upon claims of negligence, trespass,
and nuisance. The negligence claim asserted that defendant was
negligent in its maintenance of the storm water drainage system,
causing sand to accumulate in plaintiff's pond.
On 14 November 2005, plaintiff took a voluntary dismissal of
its claims for trespass and nuisance.
On 13 January 2006, defendants filed a motion for summary
judgment, which was denied on 23 January 2006. The case went totrial before a jury at the 23 January 2006 session of civil
Superior Court for Moore County.
On 26 January 2006, the jury returned a verdict finding that
defendant was negligent in causing damages to plaintiff, and
awarding damages in the amount of $40,000.00. In its judgment, the
trial court awarded costs and attorney's fees to plaintiff pursuant
to Rule 37 of the Rules of Civil Procedure based upon defendant's
refusal to admit certain facts in response to plaintiff's requests
for admission. The trial court denied defendant's motions for
judgment notwithstanding the verdict, for a new trial, and for
attorney's fees based upon alleged discovery violations by
From the judgment and the two orders entered by the trial
court, defendant appeals.
I: Directed Verdict and Judgment Notwithstanding the Verdict
In its first argument, defendant contends that the trial court
erred by denying its motions for directed verdict and judgment
notwithstanding the verdict. We disagree.
A motion for directed verdict tests the legal sufficiency of
the evidence to go to the jury[.] Munie v. Tangle Oaks Corp., 109
N.C. App. 336, 341, 427 S.E.2d 149, 152 (1993) (citing Goodwin v.
Investors Life Insurance Co. of North America, 332 N.C. 326, 329,
419 S.E.2d 766, 767 (1992)). A motion for judgment
notwithstanding the verdict is essentially a renewal of an earlier
motion for a directed verdict[,] and the standards of review are
the same. Drain v. United Services Life Ins. Co., 85 N.C. App.174, 176, 354 S.E.2d 269, 272 (1987) (citing Dickinson v. Pake, 284
N.C. 576, 201 S.E.2d 897 (1974)). A motion for directed verdict
and for judgment notwithstanding the verdict should be granted
only where the evidence, construed in the light most favorable to
plaintiff, is insufficient to support a verdict for the plaintiff.
Maintenance Equipment Co. v. Godley Builders, 107 N.C. App. 343,
348, 420 S.E.2d 199, 201-02 (1992). In ruling on the motion the
judge must consider the evidence in the light most favorable to the
non-moving party and give him the benefit of every reasonable
inference to be drawn in his favor. Id.
The standard is high for the moving party as
the motion should be denied if there is more
than a scintilla of evidence to support the
plaintiff's prima facie case. . . . The
evidence supporting the plaintiff's claims
must be taken as true, and all contradictions,
conflicts, and inconsistencies must be
resolved in the plaintiff's favor, giving the
plaintiff the benefit of every reasonable
Alexander v. Alexander, 152 N.C. App. 169, 170-71, 567 S.E.2d 211,
213 (2002) (quotation omitted). Because the judgment
notwithstanding the verdict is essentially a renewal of the motion
for directed verdict, we need only review the court's ruling as to
defendant's motion for judgment notwithstanding the verdict.
Zubaidi v. Earl L. Pickett Enters., Inc., 164 N.C. App. 107, 119,
595 S.E.2d 190, 197 (2004).
In the instant case, defendant's written motion for judgment
notwithstanding the verdict asserted the following:
1. The Village cannot be held responsible for
any storm drainage problems (including
sedimentation) originating outside of itsproperty. The Village is only required to
refrain from unreasonably altering or
augmenting the flow of surface water running
across its property, and is not required to
prevent or remedy any defective or harmful
conditions (including sedimentation) existing
on land which it did not possess or control.
2. Plaintiffs cannot recover for damages or
repairs to any easement or other property
which they do not own.
3. Diminution of value, not repair cost, is
the proper measure of damages. Plaintiffs
failed to offer any evidence of diminution of
In addition to these three assertions in defendant's motion,
defendant makes additional arguments on appeal. Defendant cannot
create new grounds for his motion on appeal, having failed to
raise [the] issue[s] before the trial court[.] Crist v. Crist,
145 N.C. App. 418, 423, 550 S.E.2d 260, 264 (2001). Therefore, we
review the merits of defendant's motion as to the three contentions
raised in defendant's motion for judgment notwithstanding the
verdict before the trial court.
In its first argument, defendant contends that plaintiff's
negligence claim must fail because plaintiff did not show any duty
that was breached by defendant. We disagree.
Defendant cites White Estates, Inc., v. Highlands Cove,
146 N.C. App. 449, 553 S.E.2d 431 (2001), and Huberth v.
120 N.C. App. 348, 462 S.E.2d 239 (1995), to specifically
contend that no duty existed because the sedimentation
originat[ed] outside of [defendant's] property. Defendant argues
that it can be held liable only if the defendant's acts oromissions caused
sediment to be in the water, not merely because
sediment-laden water flowed through the defendant's property.
(emphasis added) We disagree, and find that the cases cited by
defendant are not applicable to the instant case.
The first prerequisite for recovery of damages for injury by
negligence is the existence of a legal duty, owed by the defendant
to the plaintiff, to use due care. Meyer v. McCarley & Co.
N.C. 62, 68, 215 S.E.2d 583, 587 (1975). The common-law standard
of care is a generalized one of 'due care' on the part of the
defendant. The standard of due care is always the conduct of a
reasonably prudent person under the circumstances. Collingwood v.
G.E. Real Estate Equities
, 324 N.C. 63, 68, 376 S.E.2d 425, 428
The duty of care with regard to private property owners as to
damage caused by surface water is governed by the reasonable use
doctrine, as set forth in Pendergrast v. Aiken
, 293 N.C. 201, 236
S.E.2d 787 (1977):
Each possessor is legally privileged to make a
reasonable use of his land, even though the
flow of surface water is altered thereby and
causes some harm to others, but liability is
incurred when his harmful interference with
the flow of surface waters is unreasonable and
causes substantial damage.
at 216, 236 S.E.2d at 796.
The Court in Pendergrast
Analytically, a cause of action for
unreasonable interference with the flow of
surface water causing substantial damage is a
private nuisance action, with liability
arising where the conduct of the landowner
making the alterations in the flow of surfacewater is either (1) intentional and
unreasonable or (2) negligent, reckless or in
the course of an abnormally dangerous
The North Carolina Supreme Court and this Court have limited
the application of Pendergrast. See Board of Transportation v.
, 300 N.C. 700, 268 S.E.2d 180 (1980); Woodward v.
68 N.C. App. 331, 334, 315 S.E.2d 335, 338 (1984). In
, the Court held that the doctrine of reasonable use
was inapplicable in an eminent domain action, reasoning that:
. . . was a dispute between
private landowners[.] . . . In the instant
case, however, the interference with the
drainage of surface waters is attributed not
to a private landowner but to an entity
possessing the power to appropriate private
property for public use. Where the
interference with surface waters is effected
by such an entity, the principle of reasonable
use articulated in Pendergrast
Id. at 705-706, 268 S.E.2d at 183-184. Furthermore, in Woodward,
this Court stated, [t]here is no indication in the Pendergrast
opinion that the court meant to apply the reasonable use rule to
surface water drainage problems not arising under a nuisance
at 338, 315 S.E.2d at 338-39. We extend the logic of
to the instant case, and conclude that
although the doctrine of reasonable use may be instructive with
regard to duty of care in a negligence claim against a
municipality, it is not controlling.
does not preclude a cause of action for negligence
against a municipality for damages caused by drainage of surfacewater. In fact, Hotels, Inc. v. Raleigh,
268 N.C. 535, 151 S.E.2d
35 (1966), specifically holds that a municipality . . . may become
liable for injury caused by its negligence in the control of the
at 536, 151 S.E.2d at 37; see also Hooper v.
, 42 N.C. App. 548
, 257 S.E.2d 142 (1979).
With regard to negligence suits against municipalities in
situations of surface water damage, the Court in Hotels, Inc.
Where a city adopts a natural watercourse for
sewerage or drainage purposes, it has the duty
to keep it in proper condition and free from
obstructions, and it is liable for damage
resulting from neglect therein.
at 536, 151 S.E.2d at 37. The Court further stated that when
a municipal corporation assumes the control and management of a
drain, it is bound to use reasonable diligence and care to keep
such sewer or drain in good repair, and is liable in damages to any
property owner injured by its negligence in this respect.
151 S.E.2d at 37.
The duty of maintaining drains in good
repair includes the following:
[T]he obligation to keep them free of
obstruction, and a municipality is liable for
negligence in its exercise to any person
injured by such negligence, whether the
damages result from its failure to use
reasonable diligence to keep its sewers and
drains from becoming clogged, -- as where the
municipal corporation fails in its duty to
exercise a reasonable degree of watchfulness
to ascertain the condition of sewers and
drains from time to time so as to prevent them
from becoming obstructed.
Id. at 537, 151 S.E.2d at 37.
In the instant case, plaintiff presented evidence thatdefendant had a duty to maintain the drainage pipes and ditches,
and that defendant breached this duty. Plaintiff specifically
contended at trial that defendant breached its duty of care in
failing to install more rip-rap breaks in the ditches, failing to
circle the drainage inlets with rip-rap, and failing to plant
sufficient vegetative cover in the ditches. Plaintiff's evidence
tended to prove that these were the primary methods of preventing
sand and sediment damage. Further, plaintiff's evidence showed
that defendant accepted the dedication of streets and of the right-
of way in question, in an ordinance filed in 1985, which stated:
Acceptance of dedication of these rights-of-
way will remove much legal confusion among the
public as to the responsibility for
maintenance of streets and rights-of-way
within the Village of Pinehurst, and allow the
village to pursue drainage improvements in
Both the Director and Assistant Director of the Public Works
Department at the Village of Pinehurst testified that the
department had the duty to inspect, maintain, repair, deal with
issues within the Village of Pinehurst right-of-ways[,] including
maintenance of culverts, drains and ditches. The director further
testified that, before April 2003, public works did not have
policies and procedures . . . to perform routine inspections[,]
to make certain that there was no sand or sediment erosion[.]
Defendant contends on appeal that because defendant did not
alter or interfere with the flow of surface water, it did not
violate the reasonable use doctrine. However, in order for there
to be a finding of negligence, a defendant is not required toalter or interfere with the flow of surface water. See Dunning
v. Warehouse Co., 272 N.C. 723, 725, 158 S.E.2d 893, 895 (1968)
(stating that [t]he breach of duty may be by negligent act or a
negligent failure to act). We thus find defendant's argument
Defendant further contends that plaintiff's negligence action
must fail because liability may only arise where the municipality
has [actual] or constructive notice of the existence of an
obstruction or defect and fails to act. Ward v. City of
Charlotte, 48 N.C. App. 463, 467, 269 S.E.2d 663, 666 (1980).
Defendant argues that it had no notice in this case. However, the
evidence tended to prove that defendant had actual notice of the
condition in the drainage pipes and culverts that caused sediment
damage. The Director of Public Works Department testified:
Q: Now, it's my understanding from your
previous testimony in your deposition
that you had conceded that there were
issues of what you called wash in this
area that we talked about[.] . . . I
mean you used the word wash?
A: Yes. You know, there's always sediment
or sand coming into those ditches. Yes.
Q: And they're coming in from various
sources, but then once they're in your
right-of-way, then the duty falls on the
village to insure that that sand and
sediment doesn't get down to the drainage
system, correct? . . .
A: What they actually do if it builds up, we
try to clean it out, yes, so it would not
overflow the ditch line over the roadway.
The Assistant Director of the Public Works Department testified:
Q: Now, would you also agree . . . that thatarea, where the ditch is down in Lake
Hills, has had _ has a history of washes?
A: We've had some wash.
Q: And some of those washes include the wash
of sand and sediment?
Q: And there is some construction up on
those areas that may create an issue in
your right-of-way where there would be
more sand than maybe some other right-of-
A: Yes, sir.
Q: But despite that, the Village of
Pinehurst, to your knowledge, did not
engage in any preventative measures to
prevent the sand from getting ultimately
down to drain 3 prior to the April event?
A: That's correct.
Q: And you have no records of planting any
grass, matting, placing matting over the
grass, or any rip rap in that area until
you went to the pond and saw the sand?
A: That's correct.
We conclude that the cases cited by defendant do not foreclose
the possibility of a negligence action against a municipality,
simply because defendant's acts or omissions [did not cause]
sediment to be in the water[.] Further, we conclude that the
evidence presented in this case was sufficient to permit the jury
to determine that defendant was negligent. The evidence showed
that defendant had notice of large amounts of sediment accumulating
in plaintiff's pond; that defendant had a duty to maintain the
drains and keep them in good repair; and that defendant breached
this duty by failing to take reasonable measures to prevent thesediment from accumulating in plaintiff's pond. This assignment of
error is without merit.
IV: Jury Instructions
In its second argument, defendant contends that the trial
court erred by denying defendant's requests for special jury
instructions, pursuant to N.C. Gen. Stat. § 1A-1, Rule 51(b). We
When charging the jury in a civil case, it is the duty of the
trial court to explain the law and to apply it to the evidence on
the substantial issues of the action. Griffis v. Lazarovich
N.C. App. 434, 441, 588 S.E.2d 918, 923 (2003). When a party
appropriately tenders a written request for a special instruction
which is correct in itself and supported by the evidence, the
failure of the trial judge to give the instruction, at least in
substance, constitutes reversible error. Stimpson Hosiery Mills
v. Pam Trading Corporation
, 98 N.C. App. 543, 551, 392 S.E.2d 128,
132 (1990) (quotation omitted). The court is not required,
however, to use the precise language of the tendered instruction so
long as the substance of the request is included. Williams v.
, 94 N.C. App. 413, 425, 380 S.E.2d 553, 561 (1989); see
also Faeber v. E.C.T. Corp.
, 16 N.C. App. 429, 430, 192 S.E.2d 1,
To determine whether the trial court committed reversible
error here, we must first assess whether defendant's request for
jury instructions was correct as a matter of law and supported bythe evidence. In the instant case, defendant requested the
following special jury instructions:
Special Jury Instruction No. 1:
Members of the jury, I instruct you that a
town is responsible for the maintenance,
upkeep and operation of storm drains and
culverts constructed by a third party only
when the storm drains and culverts have been
accepted or controlled in some legal manner by
the town. The fact that a culvert owned or
controlled by a town is connected to a private
line of drainage, under the circumstances
involving no legal dedication by the private
owner or control by the town, does not make
the town liable for damages to private
property caused by a break in the private
line. A town does not adopt a private
drainage line merely by cleaning and repairing
it, or by constructing a drain, manhole, or
intake which does not conduct into the
drainage line any extra water.
In this case, Plaintiffs must prove, by the
greater weight of the evidence, that their
alleged injuries were proximately caused by a
defect or failure of those portions of the
storm drainage system which have been legally
accepted or controlled by the Village of
Pinehurst. The Plaintiffs must also prove
that the defect or failure was due to
negligence on the part of the Village. Unless
the Plaintiffs prove both of these things, it
is your duty to return a verdict in favor of
Primarily, we note that defendant misconstrued the holding in
, which stated the following general rule:
[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
at 536, 151 S.E.2d at 37. In light of the general
defendant's proposed jury instruction, that [a] town does
not adopt a private drainage line merely by cleaning and repairing
it, or by constructing a drain, manhole, or intake which does not
conduct into the drainage line any extra water[,] is misleading
and contrary to law.
Further, the trial court instructed the jury
to the following, which we conclude to be substantially the same as
the legally accurate portions of defendant's special request: the
plaintiff must prove by the greater weight of the evidence the
following things. First, that the drainage system or the pipes and
culverts are a public way which the City of Pinehurst is
responsible for maintaining. We conclude that the trial court did
not err by failing to include defendant's special jury instruction
Defendant next requested the following jury instruction:
Special Jury Instruction No. 2:
Members of the jury, among other things, you
have been asked to determine whether the
Village of Pinehurst breached a duty to the
Plaintiff. I instruct you that, in making
this determination, you must recognize that an
owner or occupier of land has a duty only to
control those conditions existing upon the
premises which are in its possession or
control. An owner or occupier of land
generally has no duty to prevent or remedy
defective or harmful conditions existing on
the land which it does not possess or control.
In this case, the Plaintiffs must prove, by
the greater weight of the evidence, that the
sand and/or sediment deposited on the
Plaintiff's premises originated on land in the
possession or control of the Village of
Pinehurst. If the Plaintiffs do not prove
that the sand and/or sediment originated onland in the possession or control of the
Village of Pinehurst, it is your duty to find
in favor of the Village.
As discussed in a previous section of this opinion, the defendant's
contention that the sand and/or sediment deposited on the
Plaintiff's premises [must have] originated on land in the
possession or control of the Village of Pinehurst[,] is not a
legal requirement as to plaintiff's claim of negligence.
Defendant's duty of care to maintain the culverts and drains
located on its right-of-way was not contingent upon the source of
sand and sediment, as defendant argues. Rather, defendant's
negligence arose from its failure to maintain the drainage system,
regardless of the source of sand. The trial court did not err by
failing to include the foregoing instruction.
Defendant next requested the following jury instruction:
Special Jury Instruction No. 3:
Members of the jury, I instruct you that in
surface water drainage cases, adjoining
property owners or occupiers have certain
rights and responsibilities with respect to
surface water drainage. These rights are
called riparian rights. The owner of a
property which is upstream, so to speak, is
referred to as an upper riparian owner,
while the adjoining downstream property owner
is called a lower riparian owner.
In general, the owner or occupier of a
property is entitled to maintain and continue
the natural flow of a watercourse running
through or along his property in its
accustomed channel. Provided that an upper
riparian owner does not take any action which
unreasonably diminishes the quality or
quantity of the water flowing through his
property, an upper riparian owner is not
liable to any lower riparian owners for any
downstream injury or damage which the waterflowing through the upper riparian owner's
property may cause to the property owned by a
lower riparian owner.
In this case, because surface water flows from
the Village of Pinehurst's right-of-way to the
Lakeview property, the Village is an upper
riparian owner and the Plaintiffs are lower
riparian owners. As a result, the Plaintiffs
must prove, by the greater weight of the
evidence, that the Village unreasonably
altered and impaired the quality and/or
quantity of the surface water which flowed
unto [sic] Plaintiffs' property. In other
words, the Plaintiffs must prove that the
Village's property was the source of the soil
or sediment runoff. It is not sufficient to
prove that the Village merely allowed soil or
sediment-laden surface water to run across its
property. If the Plaintiffs do not prove that
the Village's property was the source of the
soil or sediment runoff, it is your duty to
find in favor of the Village.
As this instruction deals solely with riparian rights, and since
[t]here is no indication in the Pendergrast opinion that the court
meant to apply the reasonable use rule to surface water drainage
problems not arising under a nuisance theory[,] Woodward at 338,
315 S.E.2d at 338-39, the trial court did not err by failing to
give the foregoing instruction.
Defendant next requested the following jury instruction:
Special Jury Instruction No. 4:
Members of the jury, I instruct you that
before you may award damages to the
Plaintiffs, the Plaintiffs must establish that
they are the owners of the property which they
claim was damaged. When an easement or right-
of-way is damaged, the owner of the easement
or right-of-way, and not the owner of the
servient tenement, is the only party entitled
to recover damages.
In this case, you may not award damages to the
Plaintiffs for any injury or repairs performedto any easement, right-of-way, or other
property owned by the Village.
Defendant specifically contends that if an easement or right-
of-way is damaged, the owner of the easement, rather than the
servient tenement, is the party entitled to recover for the
damage. Defendant further contends that [p]laintiff could not be
awarded any damages for injury or repairs to property Plaintiff did
not own. Defendant relies on Hefner v. Stafford, 64 N.C. App.
707, 308 S.E.2d 93 (1983), and Falkson v. Clayton Land Corp., 174
N.C. App. 616, 621 S.E.2d 215 (2005). In Stafford, the plaintiffs
sought compensation for trees removed from property they did not
own. In Flakson, the owner of an easement sought damages from the
servient tenant for impermissibly interfering with the owner's use
of the easement. We conclude that the decisions cited by defendant
are inapplicable to the instant case, and further, that defendant's
argument misconstrues the law as applied to the facts of this case.
Unlike Stafford, it was not disputed at trial that plaintiff owned
the damaged pond into which sand from defendant's culverts and
drainage pipes emptied. Further, unlike the plaintiff in Flakson,
plaintiff did not impermissibly interfere with defendant's right-
of-way; rather, the jury determined that plaintiff's pond was
damaged by defendant's negligent maintenance of defendant's right-
of-way. We conclude that defendant's argument that plaintiff could
not recover damages from defendant based on the foregoing cases is
erroneous as a matter of law. Therefore, the trial court did not
err by failing to instruct the jury as the defendant requested in
the special jury instruction number four. After a careful review of the charge in the instant case, we
conclude that the court properly instructed the jury with respect
to the law applicable to the substantive features of the case, and
properly applied the law to the evidence. We do not agree with
defendant that the judge should have given instructions on riparian
rights and reasonable use, which would have only tended to confuse
and mislead the jury. The issue before the jury was the negligence
of a municipality in the maintenance of its right-of-way, not
nuisance or trespass attributable to a private, adjacent landowner.
The trial court did not err by failing to give the requested
instructions. This assignment of error is without merit.
In its third argument, defendant contends that the trial court
erred by awarding plaintiff repair cost damages rather than
diminution of value damages. We disagree.
[F]or negligent damage to real property, the general rule is
that where the injury is completed . . . the measure of damages 'is
the difference between the market value of the property before and
after the injury.' Huberth v. Holly
, 120 N.C. App. 348, 353, 462
S.E.2d 239, 243 (1995) (quotation omitted). However, [w]hile the
difference in market value before and after injury is one
permissible measure of damages, it is by no means the only one.
Damages based on cost of repair are equally acceptable. Plow v.
Bug Man Exterminators, Inc.
, 57 N.C. App. 159, 162-63, 290 S.E.2d
787, 789 (1982). In Huff v. Thornton
, 23 N.C. App. 388, 209 S.E.2d
401 (1974), this Court stated: [I]n cases where the injury [to real property]
is completed or by a single act becomes a fait
, and which do not involve a
continuing wrong or intermittent or recurring
damages, the correct rule for the measure of
damages is the difference between the market
value of the property before and after the
at 393, 209 S.E.2d at 405 (quotation omitted). However, when
the damage complained of is impermanent[,] 'various other rules
are applied, such as . . . reasonable costs of replacement or
repair.' Casado v. Melas Corp.
, 69 N.C. App. 630, 636, 318 S.E.2d
247, 250 (1984).
, 69 N.C. App. at 636-38, 318 S.E.2d at 250-51, this
Court determined that the proper measure of damages was reasonable
cost of replacement and repair, where the defendant's negligence in
grading and paving a road caused the formation of a delta in the
plaintiff's pond. The Court stated that [w]hile the 'Delta'
created by the runoff may well be 'a permanent condition,' the fact
that it is continuing to accumulate makes it an impermanent and
continuing injury for the purpose of measuring damages. Id. at
636, 318 S.E.2d at 250 (quotation omitted). The Court held that
diminution in market value . . . is not appropriate where, as
here, the damage complained of is 'impermanent.' Id.
at 637, 318
S.E.2d at 251. Rather, reasonable costs of replacement or repair
is the appropriate measure of damages. Id.
; see also Phillips v.
, 231 N.C. 566, 58 S.E.2d 343 (1950) (holding that the trial
court erred by instructing the jury to compute damages awarded on
the basis of diminution in value of plaintiff's property when the
defendant diverted the natural flow of surface water, causing it toflow onto plaintiff's property, resulting in the accumulation of
clay and mud on plaintiff's land); Sutherland v. Hickory Nut Co.
23 N.C. App. 434, 209 S.E.2d 301 (1974) (holding that damages to
plaintiff's property by water and sediment resulting from
defendant's upstream land disturbance was impermanent as a matter
of law by trial court).
The facts of the instant case are similar to Casado
. Plaintiffs pond continued to collect sediment and
sand from defendant's culverts and drainage pipes, but the deposits
of sand were removable. We agree with plaintiff that [o]nce the
pond and pipe were restored . . . there would be no diminution of
value. The trial court thus instructed the jury that [t]he
plaintiff's actual property damages are the amount reasonably
needed to repair the damage to the property. We conclude that the
damages were of an 'impermanent' nature, such that the the trial
court did not err in instructing the jury that the proper measure
of damages was the reasonable costs of replacement or repair.
at 636, 318 S.E.2d at 251.
Defendant specifically requested the following jury
Special Jury Instruction No. 5:
Members of the jury, I instruct you that the
proper measure of damages for negligent damage
to real property is the diminution of value.
This is the difference between the market
value of the property before and after the
injury. In determining this amount, you may
consider the cost of any necessary repairs.
However, your award, if any, should be the
diminution of value because this is the proper
measure of damages.
However, we conclude, based upon Casado, Phillips, and Sutherland,
that the trial court did not err by failing to instruct the jury as
defendant requested in the special jury instruction number five.
This assignment of error is without merit.
Defendant has failed to argue its remaining assignments of
error in its brief, and they are deemed abandoned. N.C. R. App.
For the foregoing reasons, we find no error.
Judge BRYANT concurs.
Judge LEVINSON concurred prior to 7 July 2007.
Report per Rule 30(e)
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