#### J. R. WINCHESTER v. C. M. BYERS.

(Filed 12 December, 1928.)

1. Waters and Water Courses — Surface Waters — Bights and Diabilities in Regard Thereto.

While the upper proprietor of lands may not divert the surface water thereon from its natural flow to the damage of the lands of the lower proprietor, the latter may not dam the water back upon the lands of the former to his damage.

2. Same — Damages.

An upper proprietor of lands may recover damages against the lower proprietor for unlawfully damming the surface flow of water back upon his lands to the time he sells and conveys his land to another, and instruction so confining the damages is proper.

3. Same — Requests for Instructions.

Where temporary damages caused by a wrongful diversion of the flow of surface water are sought in an action, an exception to a charge *384generally correct as to the law arising from the evidence as to the amount of damages recoverable will not be sustained when the appellant .has failed to tender prayers for instructions going into more specific detail.

Appeal by defendant from *Harding, J.,*and a jury, at March Special Term, 1928, of MeckleNbueg.

No error.

*Clyde A. Duckworth for plaintiff.*

*Pharr & Currie for defendant.*

Pee CuRiam.

This is an action for diverting the natural flow of surface water by defendant placing dirt in such quantities on his land that the water flooded plaintiff’s land, damaging his house and [and. We think the evidence sufficient to be submitted to the jury.

The principle of law is well settled in *Porter v. Durham,*74 N. C., at p. 779: “It has been held that an owner of lower land, is obliged to receive upon it the surface water which falls on adjoining higher land, and which naturally flows on the lower land. Of course when the water reaches his land the lower owner can collect it in a ditch and carry it off to a proper outlet so that it will not damage him. He cannot however raise any dyke or barrier by which it will be intercepted and thrown back on the land of the higher owner. While the higher owner is entitled to this service, he cannot artificially increase the natural quantity of water, or change its natural manner of flow by collecting it in a ditch and discharging it upon the servient land at a different place, or in a different manner from its natural discharge.” *Brown v. R. R.,*165 N. C., at p. 396; *Barcliff v. R. R.,*168 N. C., 268; *Eller v. Greensboro,*190 N. C., at p. 720.

Taking the charge as a whole, and not disconnectedly, we think there is no reversible error. The court below charged: “(a) He (plaintiff) would be entitled to recover whatever damage he sustained to his property brought about by the wrongful acts of the defendant up to the time that he sold his property, and I believe there is evidence tending to show that that was sold in 1924. (b) If there has been a continuance of the diversion, and continuance of the flow of dirt from defendant’s lot to plaintiff’s lot since plaintiff sold his lot, such damage as has occurred since that time plaintiff would not be entitled to recover. The court does not intimate that anyone has a right to recover for such a damage which has occurred since that time, that is not a matter before the court.” The charge was clear and plain that only temporary damage could be recovered. The exception and assignment of error is to the charge between a and b, above set out, but taking the entire part of the charge it is not prejudicial. In cases of private ownership, when *385tbe action is for temporary damage for tbe continuing or recurrent wrong, tbe recovery can be in tbis jurisdiction to tbe time of tbe trial. *Webb v. Chemical Co.,*170 N. C., at p. 664. Under tbe facts bere, tbe court below correctly confined tbe damage to tbe time plaintiff sold tbe property.

Plaintiff contended tbat tbe reasonable cost of repairing tbe property, total spent, was some $800. Tbe jury’s verdict was $675.00. Tbe charge complained of as to market value was not prejudicial, as it was limited to temporary damage: “If you find tbat tbe dirt upon bis premises was placed so as to keep tbe natural flow of water on plaintiff’s land, tbat be bad put there artificially. *Such damage*as was brought *about by those acts,*if you find they were wrongful *and no more.”*

In tbe contentions tbe court below fully set forth tbe matter of unusual and excessive rains, and tbe evidence in reference to same on tbe part of both plaintiff and defendant. If tbe evidence justified a charge on unforeseen or unprecedented rain fall, no prayer was requested by defendant. Taking tbe entire .charge, we think tbe prayers asked by defendant were practically given, at least so far as tbe law was applicable to tbe facts.

In tbe present action, private ownership was involved. An issue in such case for permanent damages may be submitted only by consent of plaintiff. No such issue was submitted, nor did tbe facts justify such an issue. *Morrow v. Mills,*181 N. C., 423; *Langley v. Hosiery Mills,*194 N. C., 644. As to tbe right to take private property for public purposes, a different rule prevails. *Mitchell v. Ahoskie,*190 N. C., 235; *Eller v. Greensboro, supra; Ragan v. Thomasville, ante,*at p. 261. Tbe distinction is readily observed, ordinarily private property cannot be taken for private purposes without tbe consent of tbe owner. For public purposes it can be taken only after payment of just compensation.

Tbe action in tbe court below was tried on tbe theory of temporary damages. We find in tbe record no prejudicial or reversible error.

No error.