Biddix v. Henredon Furniture Industries, Inc.

• Decision Date: 16 July 1985
• Docket Number: No. 8424SC1245,8424SC1245
• Citation: 76 N.C.App. 30,331 S.E.2d 717
• Court: North Carolina Court of Appeals
• Parties: Terry Bruce BIDDIX v. HENREDON FURNITURE INDUSTRIES, INC.

Page 717

331 S.E.2d 717

76 N.C.App. 30

Terry Bruce BIDDIX v. HENREDON FURNITURE INDUSTRIES, INC.

No. 8424SC1245.

Court of Appeals of North Carolina.

July 16, 1985.

Lloyd Hise, Jr., Spruce Pine, for plaintiff.

Haynsworth, Baldwin, Miles, Johnson, Greaves and Edwards by Joseph A. Rhodes, Jr., Greenville, and Watson and Hunt by Frank H. Watson, Spruce Pine, for defendant.

WELLS, Judge.

Plaintiff brings forth one assignment of error in which he contends that the question for our review is "[w]hether the Water Use Act of 1967, ... preempted the common law claims of nuisance and continuing trespass based on damage to real property resulting from alleged stream pollution?" Defendant asserts that the question presented is whether the Federal Water Pollution Control Act and the North Carolina Water Use Act of 1967 "preempt the common law claims of nuisance and continuing trespass based upon alleged violations of a duly issued National Pollutant Discharge Elimination System permit?" After carefully reviewing the record on appeal, we conclude that the issue presented for our determination is whether the Clean Water Act preempts the common law actions of nuisance and continuing trespass to land for the discharge of industrial waste in violation of an applicable National Pollutant Discharge Elimination System permit (hereinafter NPDES). We conclude that the common law civil actions of nuisance and trespass to land have not been abrogated for discharge of industrial pollutants in violation of a NPDES permit, and, therefore, the trial court erred in dismissing plaintiff's action.

We narrowly frame the question to be decided based upon plaintiff's factual allegations. Plaintiff alleged:

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6) That the defendant has received from the North Carolina Department of Natural Resources and Community Development a permit to discharge waste water into said stream. Said permit is NPDES Permit No. NC0023582. Said permit regulates both the amount and quality of the waste water being discharged into the stream and prohibits the discharge of waste and chemicals not specifically permitted to be discharged by the permit.

7) Defendant has regularly and continually, for a period of at least three years, violated the terms and conditions of said permit by discharging chemicals and waste into the stream which are not permitted by the permit.

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Plaintiff alleges that defendant's waste discharges in excess of its NPDES permit damaged his real property. Plaintiff does not allege that defendant's discharges of waste materials within the limits of its NPDES permit proximately damaged his real property, and, therefore, the issue of whether the common law civil actions of nuisance and trespass to land have been abrogated for permitted industrial waste discharges proximately damaging real property is not before us.

This appeal requires a determination of whether the trial court properly dismissed plaintiff's action for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Rules of Civil Procedure. A Rule 12(b)(6) motion is the usual and proper method of testing the legal sufficiency of the complaint. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). The trial court properly dismisses a claim where it appears, to a certainty, that the plaintiff is entitled to no relief under any state of the facts which could be proved in support of the civil action. Alamance County v. Dept. of Human Resources, 58 N.C.App. 748, 294 S.E.2d 377 (1982). Plaintiff's complaint, therefore, must give sufficient notice of the events on which he bases his claim, and state sufficient facts to satisfy the substantive elements of a legally recognized claim. Hewes v. Johnston, 61 N.C.App. 603, 301 S.E.2d 120 (1983). For the purpose of a Rule 12(b)(6) motion, plaintiff's allegations are treated as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976).

Notwithstanding the trial court's order which states that federal law has abrogated the common law actions asserted by plaintiff, defendant concedes on appeal that nothing in the Federal Water Pollution Control Act (hereinafter FWPCA), as amended, 33 U.S.C. §§ 1251-1376 (1982), preempts the common law of this state concerning private actions in nuisance and trespass to land for industrial pollution. Defendant correctly recognizes that state statutory and common law rights survive enactment of a federal statute unless the federal enactment specifically preempts or conflicts with the state law. Gilbert v. Bagley, 492 F.Supp. 714 (M.D.N.C.1980). Nothing in the FWPCA abrogates the common law of any state. The remaining question is whether the Clean Water Act abrogates the common law civil actions asserted by plaintiff. Defendant's argument before this court recognizes that nothing in the General Assembly's specific statutory language abrogates these common law civil actions; defendant relies on interpretation of the nature and scope of the Clean Water Act to support the trial court's order.

In determining the General Assembly's intent, we must apply time honored rules of statutory construction. An appellate court must look to the purpose and spirit of the statute and what the enactment sought to accomplish, considering both the history and circumstances surrounding the legislation and the reason for its enactment. Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985). A presumption exists that the legislature was fully cognizant of prior and existing law within the subject matter of its enactment. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). When the General Assembly legislates with respect to the subject matter of a common law rule, the legislation supplants the common law, McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231 (1956); Christenbury v. Hedrick, 32 N.C.App. 708, 234 S.E.2d 3 (1977), however, statutes in abrogation of the common law are strictly construed, Ellington v. Bradford, 242 N.C. 159, 86 S.E.2d 925 (1955). That a legislative enactment must be strictly construed does not require "that the statute shall be stintingly or even narrowly construed, ... but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used." State v. Whitehurst, 212 N.C. 300, 193 S.E. 657 (1937) (citation omitted); see generally, R. Strong, 12 N.C. Index 3d, Statutes § 5.2 (1978). In determining the General Assembly's intent, courts rationally construe the legislative enactment recognizing that the General Assembly does not intend "untoward results." Comr. of Insurance v. Automobile Rate Office, 294 N.C. 60, 241 S.E.2d 324 (1978).

Regulation of water use, conservation of this invaluable natural resource, and abatement of water pollution are subject to common law rules as well as local, state, and federal regulation. The common law developed intricate rules protecting private landowner rights to the use and quality of waters, the nature of the rights being dependent on the classification of the water as a navigable watercourse, subterranean and percolating waters, and surface waters. See generally P. Hetrick, Webster's Real Estate Law in North Carolina §§ 348-59 (1981). A proprietor of real property adjoining a stream has the right to the "reasonable use" of the water passing through the property. The doctrine of "reasonable use" permits diminution in the quantity and quality of a watercourse that is consistent with the beneficial use of the land. E.g., Durham v. Cotton Mills, 141 N.C. 615, 54 S.E. 453 (1906). An upper riparian landowner's unreasonable use of water quantity or diminution of its quality permits a lower riparian owner to maintain a civil action in nuisance or trespass to land. E.g., Springer v. Joseph Schlitz Brewing Company, 510 F.2d 468 (4th Cir.1975); Stowe v. Gastonia, 231 N.C. 157, 56 S.E.2d 413 (1949); Clinard v. Kernersville, 215 N.C. 745, 3 S.E.2d 267 (1939); Nance v. Fertilizer Co., 200 N.C. 702, 158 S.E. 486 (1931). Our supreme court has described the nature of the lower riparian owner's right as an incorporeal hereditament of the land, the right being:

[A]s much [of a] property [right] as is the right to have the hills and forests remain in place, and while there is no property right in any particular particle of water or in all of them put together, a riparian proprietor has the right of their flow past his lands for ordinary domestic, manufacturing, and other lawful purposes, without injurious or prejudicial interference by an upper proprietor.

Smith v. Morganton, 187 N.C. 801, 123 S.E. 88 (1924).

The regulation of water use is also subject to a public interest that is protected by local, state and federal governments. See generally P. Hetrick, supra; 1A G. Thompson, Thompson on Real Property § 284 (1964). As the United States and North Carolina have expanded in population and industrialization, increased governmental regulation to abate water pollution has ensued. Legislative bodies have uniformly recognized that unabated pollution imminently threatens man's environment. The North Carolina General Assembly has enacted comprehensive and sophisticated legislation regulating water use, conservation, and pollution control. N.C.Gen.Stat. §§ 143-211 to -215.83 (1983); see generally W. Aycock, Introduction to Water Use Law in North Carolina 46 N.C.L.Rev. 1 (1967). Congress has also systematically extended its regulation of water pollution and control, culminating in the FWPCA.

In the FWPCA, Congress established the national goal of eliminating the discharge of pollutants into the navigable waters of the United States by 1985. 33 U.S.C. § 1251(a)(1). A key feature of the FWPCA is the prohibition of pollutant discharges by any person except in compliance with applicable regulatory permits. 33 U.S.C. § 1311(a). Congress authorized the Environmental Protection Agency (hereinafter EPA) to establish effluent limitations for pollutants and toxic waste discharges by industry,...