Barrier v. Troutman
| Decision Date | 02 November 1949 |
| Docket Number | No. 387.,387. |
| Citation | 55 S.E.2d 923,231 N.C. 47 |
| Parties | BARRIER. v. TROUTMAN et al. |
| Court | North Carolina Supreme Court |
Action by Dr. H. W. Barrier, against Homer L. Troutman and Carolina Air Park, Inc., to enjoin the use of an airport alleged to have been so located and operated by the defendants as to constitute a private nuisance injurious to plaintiff.
Plaintiff appealed from a judgment of the Superior Court for Cobarrus County, J. O. Rudisill, J., in favor of defendants, and denying plaintiff an injunction, and ordering plaintiff to pay costs.
The Supreme Court, Devin, J., reversed the judgment on the ground that the verdict of the jury established that the airport was a nuisance, and that plaintiff was entitled to injunctive relief.
This was a suit to enjoin the use of an airport alleged to have been so located and operated by the defendants as to constitute a private nuisance injurious to the plaintiff.
Plaintiff alleged that defendants had constructed the runway of their airport adjoining the premises on which plaintiff maintains his home and a clinic used in connection with his medical practice; that the runway extends in an east-west direction, with the west end thereof coming within 400 yards of plaintiff's property, and is 100 feet lower in elevation; that, due to the location and construction of the runway, aircraft in taking off and landing thereon must do so at so low an altitude as to endanger plaintiff's property and disturb the peace and enjoyment of the homes of plaintiff and of other local residents, and that the continuous use and operation of the airstrip is injurious to health of those in plaintiff's home and clinic; that aircraft using defendants' airport continually fly over plaintiff's home and clinic at a height of not more than 100 feet and branches of trees on plaintiff's premises have been broken off; that the harsh noises incident to the use of the runway disturb plaintiff and his family, and the serenity, peace and security of his home and clinic; that the operation of the airport as it is now being operated constitutes a hazard and danger to person and property of plaintiff and to those who come to plaintiff's clinic for medical treatment, and constitutes a nuisance; that defendants after notice refuse to cease the operation of aircraft uponand along said runway in the manner in which it is now being used.
During the progress of the trial the plaintiff announced he was not seeking damages but an abatement of the nuisance, and to restrain the flying of airplanes over plaintiff's house and property.
The determinative issues submitted to the jury were answered as follows:
It was adjudged that plaintiff recover nothing from defendants, that plaintiff's prayer for an injunction be denied, and that plaintiff pay the costs.
Plaintiff excepted and appealed.
Hartsell & Hartsell, John Hugh Williams, and E. T. Bost, Jr., Concord, for plaintiff appellant.
Smathers, Smathers & Carpenter, Charlotte, R. Furman James and W. S. Bogle, Concord, for defendants appellees.
The trial leading up to the verdict was without exception. The defendants did not appeal, and the plaintiff's appeal brings up only his exception to the denial of his motion for an injunction based upon the verdict of the jury.
Remedy by the ancient writ of nuisance has long since been superseded under the code by civil action for damages, or for removal of the nuisance, or both. G.S. § 1-539. And the rule is established that for a public nuisance where rights and privileges common to the public or to all the people of the community are injuriously interfered with, no action lies in favor of an individual in the absence of a showing of unusual and special damage, differing from that suffered by the general public. But where the nuisance results from violation of private rights and are such as to constitute a private wrong by injuring property or health, or where by the use of structures and permitted conditions a nuisance has been created, causing annoyance to the individual and disturbing him in the possession of his premises and rendering the use and occupancy thereof uncomfortable, injuriously affecting the peace and menacing the health and safety of his home, the law affords the injured person redress remedial or preventive. Cherry v. Williams, 147 N.C. 452, 61 S.E. 267, 125 Am.St.Rep. 566, 15 Ann.Cas. 715; McManus v. Southern Ry. Co., 150 N.C. 655, 64 S.E. 766; Pruitt v. Bethell, 174 N.C. 454, 93 S.E. 945; Anderson v. Waynesville, 203 N.C. 37, 164 S.E. 583; Town of Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593; 39 Am.Jur. 428. Where the nuisance is continuous and...
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