Ivester v. City of Winston-Salem

• Decision Date: 01 February 1939
• Docket Number: 758.
• Citation: 1 S.E.2d 88,215 N.C. 1
• Parties: IVESTER et al. v. CITY OF WINSTON-SALEM.
• Court: North Carolina Supreme Court

1 S.E.2d 88

215 N.C. 1

IVESTER et al. v. CITY OF WINSTON-SALEM.

No. 758.

Supreme Court of North Carolina

February 1, 1939

This is an action brought by plaintiffs against defendant to recover damages for alleged injury in taking plaintiffs' real estate, rendering it unfit for habitation by erecting maintaining and continuing certain nuisances, in close proximity, viz: The sewage disposal plant which was erected prior to 1926. The incinerator which was erected in 1931. The abattoir which was erected less than two years before this action was commenced. Summons in this action was issued October 12, 1937; notice of claim to defendant was given July 17, 1937. The sewage disposal plant, the incinerator and the abattoir are separate projects housed in separate buildings. The plaintiffs own 6.4 acres of land. The property is right up against the incinerator and from three hundred to six hundred feet from the abattoir. There is a city dump for cinders and other refuse from the incinerator within 400 feet from plaintiffs' home. There is plenary evidence of offensive odors from the abattoir and mosquitoes from stagnant water in the dump.

The complaint alleges, in part: "That the incinerator of the defendant adjoins the lands of the plaintiffs; that the defendant's sewer disposal plant and the abattoir are located near plaintiffs' land. *** That the noxious and violent odors emanating from the disposal plant, the gaseous smoke, fumes and ashes arising from said incinerator so contaminate the atmosphere on plaintiffs' entire premises that said land has become unfit for use and unfit for human habitation, causing and creating a permanent and continuous nuisance upon the lands and property of said plaintiffs. That the defendant's abattoir is also located near plaintiffs' property; that the defendant, pursuant to an ordinance duly adopted, requires that all animals slaughtered for the purpose of sale in the City of Winston-Salem be dressed and inspected at its abattoir as aforesaid. That near plaintiffs' premises, the defendant has negligently dumped all kinds of refuse, junk and rubbish; that because of this negligent and careless conduct, there has been created an unsightly appearance, as well as an unsanitary condition adjacent to plaintiffs' premises; that because of this and other negligent conduct of said defendant, a condition has been created contiguous to plaintiffs' said land which has caused the breeding of innumerable rats mosquitoes, other harmful insects and vermin, causing said plaintiffs' property to become almost worthless and wholly undesirable for human habitation. That the plaintiffs are unable to dispose of their lands for any appreciable sum for any purpose because of the violent, noxious and offensive odors, falling ashes and other causes herein complained of which amount to the taking of plaintiffs' property by defendant without compensation and without due process of law; that because of the unjust taking of plaintiffs' land by said defendant the plaintiffs have suffered damage and loss," etc.

An amendment, which we do not think changes the cause of action, but amplifies it, was allowed to the complaint, which was filed on March 1, 1938, and reads as follows: "That all of the offal from the slaughtered animals killed in the abattoir are disposed of in said plant; that in the disposition of this offal, the entrails of the slaughtered animals are torn into shreds as they are taken from the carcasses and cooked; that the grease is separated from the 'tankage' and both are disposed of and hauled away; that in the cooking and carrying away of this offal obnoxious and nauseating odors are created and the air is permeated with them; that the animals are kept in pens preparatory to their being slaughtered; that a great many houseflies are hatched and that they infest the premises of the plaintiffs; that, while these cattle are impounded awaiting slaughter, the noises made by them greatly disturb these plaintiffs and render their property unfit for any purpose other than agricultural lands; that the blood and offal which is the natural results of slaughtering animals, are carelessly and negligently left in and around this abattoir which adds to, if possible, the odors emanating from the slaughterhouse itself; that in the mounds of cinders which have been placed on other property than that belonging to the City, which is adjacent to and almost surrounds the property of the plaintiffs, rats' den and rats have become so numerous that it is almost impossible for the plaintiffs to raise chickens or any grain on the lands mentioned in the complaint; that these acts on the part of the defendant have rendered the property of the plaintiffs almost entirely worthless; that these acts are permanent, constant and continuing and, as a result thereof the defendant has appropriated the property of the plaintiffs mentioned in the complaint; and that the falling cinders, ashes and soot and odors emanating from the incinerator plant, together with the erection and maintenance of the abattoir, have also added an increased burden on the property of the plaintiffs."

There was evidence to sustain the allegations of the complaint. The evidence is to the effect that the allegation of damages from the abattoir occurred within two years before the action was commenced. The defendant denied the material allegations of the complaint and set up the defense that plaintiffs' notice was not sufficient in law--"It is denied that said paper writing is in conformity with the laws of the State of North Carolina, or Section 115 of the charter of the City of Winston-Salem."

At the close of plaintiffs' evidence the defendant in the Court below made a motion for judgment as in case of nonsuit. C.S. § 567. The Court below overruled the motion. At the conclusion of all the evidence the defendant renewed its motion for judgment as in case of nonsuit. The motion was granted. The plaintiffs excepted, assigned error and appealed to the Supreme Court.

John C. Wallace and Parrish & Deal, all of Winston-Salem, for appellants.

Ratcliff, Hudson & Ferrell, of Winston-Salem, for appellee.

CLARKSON Justice.

We think there was error in granting the nonsuit as the evidence was sufficient to be submitted to the jury.

In Shute v. Monroe, 187 N.C. 676, 683, 123 S.E. 71, 74, is the following: "The Anglo-Saxon holds no material thing dearer than the ownership of land--his home is termed his 'castle.' Although there is nothing in the Constitution of North Carolina that expressly prohibits the taking of private property for public use without compensation (the clause of the United States Constitution to that effect applies only to acts by United States, and not to government of the state), yet the principle is so grounded in natural equity and justice that it is a part of the fundamental law of this state--that private property cannot be taken for public use without just compensation. Johnston v. Rankin, 70 N.C. [550] 555." MacRae v. Fayetteville, 198 N.C. 51, 54, 150 S.E. 810; Reed v. State Highway & P. W. Comm., 209 N.C. 648, 654, 184 S.E. 513.

In Metz v. Asheville, 150 N.C. 748, 751, 64 S.E. 881, 882, 22 L.R.A.,N.S., 940, speak speaking to the subject, it is written: "The reason of this distinction in regard to property seems to lie in the fact of ownership, vested rights, which no one can invade, not even the government, unless for public purposes, and then only by paying the owner for it. Where, in the discharge of its governmental functions and police powers, the officers of a municipality invade property rights, the doctrine of respondeat superior applies, and the corporation is liable for their acts."

In Hines v. Rocky Mount, 162 N.C. 409, 412, 78 S.E. 510, 511, L.R.A.1915C, 751, Ann.Cas.1915A, 132, citing a wealth of authorities, it is stated: "This general principle is subject to the limitation that neither a municipal corporation nor other governmental agency is allowed to establish and maintain a nuisance causing appreciable damage to the property of a private owner without being liable for it. To the extent of the damage done to such property, it is regarded and dealt with as a taking or appropriation of the property, and it is well understood that such an interference with the rights of ownership may not be made or authorized except on compensation first made pursuant to the law of the land. *** In affording redress for wrongs of this character, injuries caused by a nuisance wrongfully created in the exercise of governmental functions, our decisions hold, as the correct deduction from the above principle, that the damages are confined to the diminished value of the property affected." Moser v. Burlington, 162 N.C. 141, 78 S.E. 74.

In Rhodes v. Durham, 165 N.C. 679, 680, 81 S.E. 938, it is said: "We have held, in several recent cases, that damages may be recovered for a wrong of this character, and to the extent that the value of plaintiff's property is impaired, the right is not affected because the acts complained of were done in the exercise of governmental functions. Donnell v. Greensboro, 164 N. C. [330] 331, 80 S.E. 377, and authorities cited. *** [pages 682, 683, 81 S.E. at page 939.] And in the citation to Lewis on Eminent Domain, supra [1 Vol. (3rd ed.) Sec. 230], referring to the kind of injuries which may be treated as a taking of property, the author says: 'The owner of land has a right that the air which comes upon his premises shall come in its natural condition, free from artificial impurities. This right has its correlative obligation, which is that one must not use his own premises in such a manner as to discharge into the atmosphere of his neighbor dust, smoke, noxious gases, or other foreign matter which substantially affect its...