
    MOLLIE M. WILLIS v. J. G. WHITE & CO.
    (Filed 4 March, 1909.)
    1. Railroads — Construction—Improper Drainage — ^Independent Contractor — Negligence.
    When one who has contracted to construct a roadbed and track for a railroad company according to plans furnished by the civil engineer of the company enters upon the lands of the owner for that purpose, both he and the railroad company are responsible in damages for his negligent failure to use reasonable efforts to protect the land and crops growing thereon from injury caused by the construction.
    2. Railroads — Construction—Improper Drainage — Negligence—Independent Contractor — Compi'etion of Work — Liability.
    An independent contractor who has constructed a roadbed and track for a railroad company on its right of way in accordance with the plans and specifications of. the civil engineer of the company, is not liable to the owner of the land for damages from improper drainage, caused by an error of the engineer in fixing the size of the drainpipe, which accrued after the completion of the work and delivery to the railroad company.
    3. Same — Permanent Damages.
    Permanent damages to land cannot be recovered of an independent contractor who has constructed a roadbed and road for' a railroad company on its easement over the lands of another according to the plans and specifications of the company’s civil engineer, his authority ceasing thereon when the work is turned over to and accepted by the company.
    
      4. Married Women — Damages to Land — Joinder of Husband— Parties.
    A married woman may maintain an action without joining her husband to recover damages to her land caused by the improper construction of a roadbed and road on a railroad company’s right of way thereon.
    ActioN tried before 0. II. Allen, J., and a jury, at October Term, 1908, of Chayen.
    Tbe testimony discloses tbe following case: Plaintiff, a feme .covert, being tbe owner of a tract of land described in tbe complaint, conveyed to tbe Norfolk and' Southern Railway Company a right of way over said land upon which to construct a roadbed and track for its use as a common carrier. Tbe engineers of tbe railroad company made a plan containing specifications for tbe construction of tbe roadbed, drainpipes, etc. Tbe defendant contracted with tbe railroad company to construct tbe roadbed, track, etc., in accordance with tbe plans and specifications. Tbe right of way ran through plaintiff’s field, which was drained by a ditch crossed by tbe roadbed and track. Tbe engineers prescribed tbe size of tbe drainpipe to be placed under tbe roadbed. Tbe defendant built according to tbe plans and specifications. Tbe engineer says: “I tried to make every provision for tbe draining of tbe land and, in my judgment, put in sufficient pipes to drain it.” Tbe work was done by defendant-between 15 June, 1906, and 1 January, 1907.
    Plaintiff alleges: (1) That defendant’s employees removed tbe fence at tbe point of entrance to tbe land and failed to construct cattle guards and provide means for keeping tbe cattle off tbe land upon which a crop was growing; that by reason of defendant’s negligence in this respect cattle went upon tbe land and injured 'the crop. (2) That defendant, by its negligence in tbe construction of tbe road, stopped up tbe ditches on tbe land of plaintiff, and by reason thereof “it is now flooded when it rains, on account of tbe drains being stopped up and cut off,” etc.; that tbe land is “sogged and soured” and its fertility destroyed; that tbe injury is permanent.
    Defendant denied tbe material allegations of tbe complaint, and set up as a bar to plaintiff’s action a release by plaintiff’s tenant for all claim of damages to tbe crop.
    
      His Honor submitted tbe following issues:
    1. “Was tbe plaintiff’s crop damaged by defendant’s negligence ?
    2. “Wbat damage is plaintiff entitled to recover for crops ?
    3. “Was plaintiff’s land permanently damaged by defendant’s negligence ?
    4. “Wbat sum is plaintiff entitled to recove for permanent injury to ber land?”
    There was evidence tending to sbow negligence of defendant in failing to protect tbe growing crop on tbe land while constructing tbe road, and its injury by reason of cattle going upon it. Tbe jury found tbe issue in tbe affirmative and assessed tbe damages at $125. Upon tbe third issue there was evidence that tbe land was injured by reason of tbe defective drainage. One witness says: “Tbe water wants to cross tbe railroad, and it can’t; there is no way for it to go under tbe track.” Tbe evidence noted was all introduced by plaintiff. Defendant moved for judgment of nonsuit. Motion denied. Defendant excepted.
    His Honor charged tbe jury upon tbe third issue: “By having sold tbe defendant a right of way through ber land, that carried with it tbe right to erect tbe railroad over ber land, but in doing so tbe parties constructing it are required to use every reasonable means of protecting tbe land through which tbe railroad is constructed, and if tbe parties constructing it negligently fail to use such means as were reasonable and proper for protecting tbe land it would be held liable in damages. You will consider tbe evidence. Was tbe land flooded, and if so, could that have been prevented by tbe use of ordinary care on tbe part of tbe defendant in constructing tbe road? Could they have made arrangements to have taken off that water by tbe exercise of reasonable care?” To this instruction defendant excepted. His Honor further told tbe jury that if they found tbe issue in tbe affirmative tbe measure of damages would be tbe difference in tbe value of tbe land with tbe road constructed as it now is and tbe value of tbe land bad tbe road been skillfully constructed. Defendant excepted. Verdict and judgment for $325 permanent damages. Defendant appealed.
    
      
      R. A. Nunn for plaintiff.
    
      Moore & Dunn for defendant.
   Connor, J.

We concur with, his Honor’s view in regard to the measure of duty which the railroad company owed to the plaintiff in constructing its roadbed and track over her land. We further concur with him in the opinion that when defendant contractor entered upon the land for the purpose of constructing the roadbed and track, pursuant to the plans and specifications made by the engineers, it came under a legal liability‘to use all reasonable efforts to protect.plaintiff’s land and the crops growing thereupon from damage, and for negligent failure to meet this standard of duty both the railroad and defendant are liable. There was ample evidence to sustain the plaintiff’s allegation and the verdict of the jury in this respect. The defendant’s motion for judgment of nonsuit, therefore, was properly denied.

The questions presented upon defendant’s exceptions pointed to the third issue are much more serious. We do not find any evidence of negligence on the part of defendant in performing the work, constructing the roadbed, in accordance with the plans and specifications furnished to it by the company’s engineer. The only evidence upon this phase of the case comes from plaintiff’s witness, Colvin, who says that he was the engineer. “White & Co. had nothing to do with the plan and diagram; they had to build the railroad as I directed. I was in charge of that section and I represented the railroad compány; they built this according to the lines I laid out. I put the size and position of the pipes on the map, and they put it in according to that. White & Co. had no authority over me. If there is any defect in the ditches I should say it was due to the plans of the railroad. They carried out the general plans as I made them.” It is apparent, therefore, upon plaintiff’s evidence — and there is none to the contrary — that whatever permanent damage plaintiff’s land sustained is due to the mistake of the engineer in fixing the size of the drainpipe. It is alleged in the complaint that defendant began work in June, 1906, and concluded 1’January, 19,07. It is manifest that for all damage sustained by injury to the crop of 1906 plaintiff has recovered in this action on the first and second issues. It is in evidence that plaintiff sued the railroad company in another action for “damage and injury to crops growing on the land,” and her tenant recovered pay from defendant for Ms interest in the crops of 1906. It is clear that full compensation bas been recovered for all damage sustained prior to the institution of this action 29 May, 1907. Is defendant, an independent contractor, liable for permanent damage to the land by reason of the mistake of the engineer of the railroad company in fixing the size of the drain? It was the absolute duty of the company to provide a sufficient drain through its roadbed and thereby avoid ponding water upon plaintiff’s land. There is no question of negligence involved. The principle controlling the liability of the railroad is laid down by Shepherd, C. J., in Staton v. Railroad, 111 N. C., 278. Applied to this case, the railroad was entitled to construct its roadbed across plaintiff’s land, but in doing so was not entitled to close up a ditch draining the land. It was under an absolute duty to provide means sufficient to.permit the water to flow under or through the roadbed, as it did when the right of way was granted. For a failure to make such provision it was liable to an action when substantial damage was sustained — that is, the cause of action accrued from that time, and not from the time the roadbed was constructed. Staton v. Railroad, 147 N. C., 428; Ridley v. Railroad, 118 N. C., 996. The cause of action, therefore, is not for a trespass committed in building the road, but for injury caused by maintaining a nuisance whereby plaintiff’s land is “sogged and soured.” For this the plaintiff may, as against the railroad company, recover' in one action permanent damages, for the reason that the structure is permanent. The road, upon paying the judgment, acquires an easement to maintain its roadbed and track for the reasons set forth in Ridley’s case, supra, and many others, including Beasley v. Railroad, 147 N. C., 362; Revisal, see. 394. If defendant be liable at all for constructing the roadbed according to the plans and specifications furnished by the railrojid company’s engineers, it certainly cannot be so fox any other damage than accrued prior to the completion of the work and delivery to the owner. There is much doubt whether, in the absence of any negligence in construction, a builder or contractor is liable to third parties for damages caused by mistake in tbe architect or engineer. In Pearson v. Zable, 78 Ky., 168, a municipal corporation prescribed tbe plan for making street improvement, and employed defendants to perform tbe 'work, wbicb resulted, by reason of tbe defective plan, in injury to an owner of adjoining lots. Tbe court beld tbat tbe town was liable, but, in respect to tbe contractor, said: “It is not alleged tbat tbe appellants did not grade tbe street in all respects as required by tbe ordinance and contracts, and we must therefore assume tbat they did. "What they did having been done under authority of law, they are not responsible for injury resulting to tbe appellee in consequence of tbe failure to provide an outlet for tbe water accumulating in tbe street, or for tbe consequences resulting from it. It was not their duty, but tbe duty of the city, to provide plans for tbe work and'to guard against unnecessary injury to tbe property.” Tbe distinction between liability for negligent construction and for injuries resulting from errors of tbe engineers is stated by tbe. editor of tbe Am. and Eng. Ene. (YoL 16, p. 208). Tbe railroad company is not liable for' injuries caused to persons or property by tbe wrongful act of tbe contractor “for failure to provide drains in constructing tbe railroad, whereby injuries result before tbe road is turned over to tbe railroad company. * * * An independent contractor is not liable, as a general rule, for injuries to a third person accruing after bis completion of tbe work and its acceptance by tbe employer.” There are exceptions to tbe general rule, but tbe present case does not' come within them. Curtin v. Somersett, 140 Penn. St., 70; 23 Am. St. Rep., 220. It is manifest tbat upon tbe evidence in this case tbe only damage sustained by tbe plaintiff is caused by tbe failure of tbe engineers to provide for a drain of sufficient size. There is, so far as we can perceive, no evidence tbat tbe land was “sogged and soured” at tbe time tbe road was completed and turned over to tbe company. No cause of action, therefore, accrued against tbe defendant, because there was no trespass on her property and no substantial injury sustained at tbat time. For damages resulting thereafter tbe company was liable for maintaining a nuisance resulting in injury. Under tbe common-law system of procedure tbe plaintiff’s action would be trespass on tbe case and not quare clausum frigit.

Again, if defendant was liable at all, tbe damages could be assessed only to tbe time of tbe trial. Tbe reasons upon wbicb permanent damages are allowed to be• assessed against'a railroad company, or any other corporation having tbe right of eminent domain, do not apply to tbe defendant. It can acquire no easement or right to flood plaintiff’s land or to continue tbe obstruction to tbe flow of tbe water, nor has it any right or power to go upon tbe company’s roadbed and enlarge tbe drain. Its connection with tbe property came to an end when tbe work was completed. Its wrongful act, if wrongful at all, was in constructing tbe roadbed with an insufficient drain. It has no power to maintain or abate tbe nuisance. For injuries sustained by continuing tbe conditions injurious to plaintiff tbe railroad company alone is liable. If a contractor who constructed a building on tbe land of another according to plans and specifications is to be held liable to all who may come into tbe bouse, or all adjoining landowners, for injuries accruing after tbe completion of tbe building and its acceptance by tbe owner, as said by Paxson, C. J., in Curtin v. Somersett, supra, “it would be difficult to measure tbe extent of bis responsibility, and no prudent man would engage in such occupations upon such conditions.” We incline very strongly to tbe opinion that if a motion bad been made by defendant for judgment of nonsuit on plaintiff’s second cause of action it should have been allowed. Tbe testimony sent up is not very full, and we direct a new trial upon tbe third and fourth issues.

We concur with bis Honor’s ruling in regard to tbe right of tbe feme plaintiff to maintain tbe action without joining her husband. Revisal, sec. 408. We also concur with bis ruling in regard to tbe effect of tbe other actions brought by tbe tenant and tbe plaintiff.

Tbe appellant'will pay costs of this Court, exclusive of printing:

Partial New Trial.  