
81 S.E.2d 153 (1954)
239 N.C. 697
JOHNSON et al.
v.
CITY OF WINSTON-SALEM et al.
No. 743.
Supreme Court of North Carolina.
March 24, 1954.
*158 Deal, Hutchins & Minor, Winston-Salem, for plaintiffs, appellants.
Ratcliff, Vaughn, Hudson, Ferrell & Carter, Winston-Salem, for defendant S. C. Harper, appellee.
JOHNSON, Justice.
The gravamen of the plaintiffs' cause of action is that the defendant Harper, being under legal duty to maintain the drain pipe under his land, negligently permitted it to remain in a known state of disrepair, thereby proximately causing the injury and damage in suit.
The individual defendant takes the position it was the sole duty of the City of Winston-Salem to maintain the drain, and that if this be so, he may not be held actionably negligent for failure to make the repairs.
Therefore, at the threshold of the appeal we are confronted with the question whether the evidence below is sufficient to show prima facie that the defendant Harper was under legal duty to maintain the section of the drain pipe under his property. This seems to be the pivotal question on which decision turns.
The circumstances and events by which the underground drain across the defendant Harper's land came to be substituted for the original open drain are relevant to the inquiry at hand.
The original open drain on the defendant Harper's land was part of an open drainway which followed a natural drainage depression leading downgrade from 4th Street to and beyond what is now Hanes Park. In this situation the ownership of each of the various parcels or tracts of land along the course of the drainway was subject to these reciprocal rights and duties with respect to drainage: The law conferred on the owner of each upper estate an easement or servitude in the lower estates for the drainage of surface water flowing in its natural course and manner, without obstruction or interruption by the owners of the lower estates to the detriment or injury of the upper estates. Each of the lower parcels along the drainway was servient to those on higher levels in the sense that each was required to receive and allow passage of the natural flow of surface water from the higher land. Phillips v. Chesson, 231 N.C. 566, 58 S.E.2d 343; Davis v. Atlantic Coast Line R. Co., 227 N.C. 561, 42 S.E.2d 905; Darr v. Carolina Aluminum Co., 215 N.C. 768, 3 S.E.2d 434; Winchester v. Byers, 196 N.C. 383, 145 S.E. 774; Porter v. Durham, 74 N.C. 767; Overton v. Sawyer, 46 N.C. 308. See also 56 Am.Jur., Waters, Sec. 68 et seq.
The then owner of the Harper property, located as it was in an intermediate position along the course of this drainway, was both a dominant and a servient proprietor. As servient to the upper proprietors, he was not permitted by law to interrupt or prevent the natural passage of waters, to their detriment. And conversely, as the owner of an estate dominant to the lower tenements, he was required, under pain of incurring actionable liability, to refrain from interfering with the natural flow of waters by artificial obstruction or device, to the detriment or injury of the lower tenements. Phillips v. Chesson, supra; Supervisor and Commissioners of Pickens County v. Jennings, 181 N.C. 393, 107 S.E. 312; Farnham, Waters and Water Rights, Sec. 889d.
Prior to 1920, with the ownership of the property along this natural drainway being subject to the foregoing reciprocal rights and duties as to drainage, the upper segments of the present underground line of drainage were installed, beginning at 4th Street and running through the first and *159 second blocks down to the edge of the Harper property at Jersey Avenue. Sometime thereafter, C. M. Thomas, the then owner of all the property along the drainway between Jersey and Carolina Avenues, extended the artificial drain on through his property the entire length of the block, using pipe the same size and capacity as that used by the adjoining landowners in the block above, and then filled in the natural drainage depression and channel through which the conduit was laid and developed his lands as residential property.
Thomas was not required to extend the underground conduit that had been brought down to Jersey Avenue by the upper owners. On the record as presented his act in so doing was entirely voluntary and unaided by any other person or by the City of Winston-Salem. He could have left this drainway open across his land, so as to let the natural flow of waters from the upper tenements empty from the end of the conduit at Jersey Avenue into the established open channel and continue to flow thence across his land to Carolina Avenue, and from there on, as at present, in an open channel across the block immediately below Carolina Avenue and on to West End Boulevard. In such manner Thomas, as owner of a lower parcel of land, servient for natural drainage purposes to higher lots along this hillside drainway, may well have fulfilled his duties to the upper proprietors.
However, when Thomas, presumably for his own convenience and for the better enjoyment of his property, closed the natural depression and channel through which the waters from the upper, dominant tenements had been accustomed to flow and installed in lieu thereof the underground conduit, the law imposed upon his ownership the burden of maintaining the artificial drain, requiring him to take care, not as an insurer but in the exercise of ordinary care, to keep the conduit through his land open and in repair so as to accommodate the natural flow of surface waters from the upper tenements across his land without injury to the lower tenements along the line of the drainway. The true rule as to this would seem to be that ordinarily a lower or intermediate proprietor along a natural drainway who for his own convenience and the better enjoyment of his property closes the natural channel of open drainage and installs in lieu thereof an underground conduit into which the natural flow of upper waters is channeled to the next tenement below, is required to maintain the artificial drain so installed, and in doing so he must exercise ordinary care, under pain of subjecting himself to actionable tort liability, to see that no injury by breakage, leakage, seepage, or overflow is done by it to lower tenements. Supervisor and Commissioners of Pickens County v. Jennings, supra; Phillips v. Chesson, supra; Farnham, Waters and Water Rights, Sections 448, 830, 889d, and 926; Armstrong v. Luco, 102 Cal. 272, 36 P. 674; 67 C.J. 887; 56 Am.Jur., Waters, Sec. 68, pp. 551, 552.
We see no reason why the general rule which fixes the mutual and reciprocal rights and liabilities of adjoining landowners under the maxim sic utere tuo lit alienum non laedas, requiring that each use and maintain his own land in a reasonable manner as not to injure the property or invade the legal rights of his neighbor, should not apply with all its rigor to a property owner who for the better enjoyment of his property closes an open drainway fixed by nature across his land and installs in lieu thereof an underground conduit. 1 Am. Jur., Adjoining Landowners, Sections 3 and 13; 2 C.J.S., Adjoining Landowners, §§ 1, 41, and 44.
The evidence here is plenary that when the defendant Harper purchased the lands from Thomas, he did so with notice of the artificial condition previously created by Thomas. This being so, the property passed to the defendant Harper cum onere, and specifically subject to all existing servitudes with respect to maintenance of the underground drainage system. See 17 Am.Jur., Easements, Sections 128 and 130.
*160 Similarly, when the defendant Harper conveyed the lower 50-foot lot to the plaintiffs' landlord, Harper's original duty of upkeep and maintenance continued as to the conduit under the portion of the tract retained by him. See Farnham, Water and Water Rights, Sections 831 and 908.
It necessarily follows that the plaintiffs' evidence is sufficient to show prima facie that the defendant Harper was under legal duty to maintain the conduit under his land.
This brings us to a consideration of the defendant Harper's further defense that the city and not he was under the legal duty to maintain the conduit under his land. The gist of the further defense and contentions made thereunder is that although this underground drain originally may have been a private drainage project, it had lost its identity as such and had been taken over or appropriated as a part of the city street and park drainage system, and while the burden of maintenance and upkeep may have rested originally upon the property owners along the drain, this burden had passed to the city by operation of law as incident to its use and control of the pipe line. The plea so made by Harper necessarily stands as an affirmative defense only against the plaintiffs, since the City of Winston-Salem was released from the case by voluntary nonsuits taken before the commencement of the trial, by the plaintiffs as to their action against the city, and also by Harper in respect to his cross-actions against the city.
Even so, Harper's affirmative defense is entitled to consideration under application of the rule of procedural law which provides that "When the plaintiff offers evidence sufficient to constitute a prima facie case in an action in which the defendant has set up an affirmative defense, and the evidence of the plaintiff establishes the truth of the affirmative defense as a matter of law, a judgment of nonsuit may be entered." Hedgecock v. Jefferson Standard Life Ins. Co., 212 N.C. 638, 641, 194 S.E. 86, 88. Nevertheless, the merits of the affirmative defense are to be determined by principles of substantive law. And as to this, the 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. City of Irvine v. Smith, 304 Ky. 868, 202 S.W.2d 733; 63 C.J.S., Municipal Corporations, § 877; 38 Am.Jur., Municipal Corporations, Sec. 636. 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. Robinson v. Danville, 101 Va. 213, 43 S.E. 337; Lander v. Bath, 85 Me. 141, 26 A. 1091; McQuillin, Municipal Corporations, Third Edition, Sec. 53.118.
The defendant Harper in support of his affirmative defense points to the evidence that the city in 1928 made extensive street improvements along 4th Street in the vicinity of Grace Court and thereby materially increased the flow of street surface waters into the catch basins around Grace Court, and diverted into this underground drain vast quantities of surface waters which naturally would have flowed elsewhere than along the original channel where the underground drain was installed. Upon the record as presented, this evidence is without material significance as tending to show legal appropriation or control of the entire conduit by the city. This is so for the reason it affirmatively appears that when Harper's predecessor in title voluntarily extended the line through his property, he used pipe 24 inches in diameter, the same size as that used by the upper landowners in the block above him. This, nothing else appearing, indicates assent by the owners of the lands along the conduit to its use up to capacity. There is no evidence that the city augmented the flow of water to the point of overloading the drain or causing an overflow, and the plaintiffs' claim here asserted is not, on this record, traceable *161 to any such causal origin. Therefore the appeal as presented does not bring into focus the rules of law applicable where there is an acceleration or increase in the volume of surface waters in or through a drain incident to the improvement of lands. Accordingly, we deem it unnecessary to discuss the refinements of these rules of law. See Davis v. Atlantic Coast Line R. Co., supra, 227 N.C. 561, 42 S.E.2d 905; 56 Am. Jur., Waters, Sections 71, 72, and 73. Moreover, the fact that a private line of drainage is connected with a municipal culvert under circumstances involving no dedication by the private owner or control by the municipality, ordinarily does not make the latter liable for damages to private property caused by a break in the private line. See Lynch v. Clarke, 25 R.I. 495, 56 A. 779; City of Irvine v. Smith, supra; Kansas City v. Brady, 52 Kan. 297, 34 P. 884, 39 Am.St.Rep. 349.
The defendant Harper also points to the evidence tending to show that the city sent its employees to the plaintiffs' premises and assisted in cleaning out the basement after it was flooded, and that sometime later the city installed a catch basin on the upper side of Jersey Avenue and diverted this entire line of drainage into another drain under Brookstown Avenue. This line of evidence is without probative force of substance. The events related took place after the flood, and while city employees made the new installation, the record discloses that the defendant Harper furnished the pipe. So, at most, this was a joint undertaking by the city and Harper.
In determining whether the evidence establishes Harper's affirmative defense, we are not concerned with the plaintiffs' abandoned allegations against the city. Decision here must be rested wholly and solely upon an evaluation of the plaintiffs' evidence as it comes to us at the prima facie level. Our examination of it leaves the impression that the plaintiffs did not prove themselves out of court by fixing upon the city the duty of maintaining this conduit and keeping it in repair. The record discloses no evidence tending to show dedication or legal acceptance by the city of the drain as a part of its drainage system, nor control over it by the city as such, within the purview of the controlling principles of law. Instead, the plaintiffs have established prima facie that the duty and responsibility of keeping up the drain rested upon the defendant Harper.
So, then, we come to consider the final question whether the plaintiffs made out a prima facie case of actionable negligence against the defendant Harper for failure to keep in repair the drain under his land.
The evidence adduced below, when tested by the principles which control the law of actionable negligence, Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A. L.R.2d 682; 38 Am.Jur., Negligence, Sections 57, 58, and 62, leaves the impression that it is sufficient to justify, though not necessarily to impel, the inference of negligence on the part of the defendant Harper as the proximate cause of the plaintiffs' injury and damage. Thus a jury trial is necessary. This being so, we deem it appropriate to refrain from further comment or elaboration on the various aspects of the evidence.
The judgment of nonsuit entered below is Reversed.
BOBBITT, J., took no part in the consideration or decision of this case.
