Clinard v. Town of Kernersville

• Court: North Carolina Supreme Court
• Citation: Clinard v. Town of Kernersville, 215 N.C. 745, 3 S.E.2d 267 (N.C. 1939)
• Decision Date: 16 June 1939
• Docket Number: 753.
• Parties: CLINARD et ux. v. TOWN OF KERNERSVILLE et al.

3 S.E.2d 267

215 N.C. 745

CLINARD et ux. v. TOWN OF KERNERSVILLE et al.

No. 753.

Supreme Court of North Carolina

June 16, 1939

[Copyrighted Material Omitted]

Civil action to recover damage to real property caused by the pollution of a stream which crosses plaintiffs' land by emitting waste water from sewage disposal plant and dye water and waste from the Knitting Company plant, and for damages arising from other causes set out in the complaint.

The Town of Kernersville erected a sewage disposal plant on Abbotts Creek, about 250 yards above the property of plaintiff. The plant was completed and put in operation in the year 1937. Water from the plant flows into said creek passing over and across the lands of the plaintiffs, and they allege that by reason thereof odors are emitted which materially affect the value of their property.

Vance Knitting Mill is a corporation having its plant located in the corporate limits of the Town of Kernersville. The water used by it in connection with its dying process is discharged into a basin on its property which was constructed by the Town of Kernersville. The Town of Kernersville then disposes of the water through a ditch into Abbotts Creek and it then flows over and across plaintiffs' land. Plaintiffs allege that said dye water discolors and pollutes said stream and causes noxious odors to emanate, resulting in damage to their property. Plaintiffs also allege that while the sewage plant was being constructed by the defendant town the town cut the timber, underbrush and shrubbery growing on either side of the banks of Abbotts Creek and caused the timber to become lodged in said creek, causing sand and debris to flow down and fill in the creek, which results in an overflow of said creek during rains, which overflow damages and injures their property.

The plaintiff alleges that the maintenance of the sewage disposal plant is permanent in its nature and character and by its construction plaintiffs have suffered permanent damage and their property has been practically confiscated without compensation, and that the defendant Vance Knitting Company is continually trespassing on the property of the plaintiffs and creating a nuisance thereon, thereby depriving the plaintiffs of the lawful use of their property without compensation.

Upon the trial below issues were submitted to and answered by the jury as follows:

"1. Are the plaintiffs the owners of the land described in the complaint? Answer: Yes.

"2. Has the plaintiffs' land been damaged by the maintenance and operation of a sewage disposal plant by the Town of Kernersville, as alleged in the complaint? Answer Yes.

"3. Has the plaintiffs' land been damaged by the defendant, Vance Knitting Company, Incorporated, polluting the stream that flows through the plaintiffs' premises, as alleged in the complaint? Answer: Yes.

"4. What permanent damage, if any, are plaintiffs entitled to recover of the defendants? Answer: $1650.00."

From judgment on the verdict the defendants appealed.

Manly, Hendren & Womble and I. E. Carlyle, all of Winston-Salem, for appellants.

Lovelace & Kirkman, of High Point, and Benbow & Hall, of Winston-Salem, for appellees.

BARNHILL Justice.

The plaintiffs offered evidence tending to show that the Vance Knitting Company is engaged in the manufacture of hosiery of plain and varied colors and for that purpose owns and operates a plant located in the Town of Kernersville; that under the direction and supervision of the Town of Kernersville said Vance Knitting Company, during a portion of the time when it is in operation, emits water from its plant into a ditch which leads to Abbotts Creek and that this water is discolored. The defendants' evidence is to like effect as to the methods of disposal of the water from the Vance Knitting Company.

It shows that the water from the Vance Knitting Company is discharged into a basin located on the property of said company, but constructed and maintained by the town; that the town then disposes of the water through a ditch emptying into Abbotts Creek; that prior to the construction of the plant on Abbotts Creek the Town ran this water through a sewage disposal plant on Muddy Creek; that the outlet for the water was transferred to Abbotts Creek in order to increase its flow and was at first run through the sewage plant, but on advice from the Board of Health it was diverted directly into Abbotts Creek without going through the disposal plant.

A plaintiff may not as a matter of right have permanent damages for the maintenance of a nuisance assessed against a private corporation. His right exists only as against municipalities and corporations having the statutory power of eminent domain. Langley v. Hosiery Mills, 194 N.C. 644, 140 S.E. 440, and cases there cited. However, it may be done by consent, Langley v. Hosiery Mills, supra; Brown v. Chemical Company, 162 N.C. 83, 84, 77 S.E. 1102, 45 L.R.A.,N.S., 773, and the defendant Vance Knitting Company joined in the request for the assessment of permanent damages in the event damages were allowed.

Even if it be conceded that there is any evidence in the record tending to show that the water coming from the Vance Knitting Mill in anywise adversely affects the value of the lands of the plaintiffs we are of the opinion that as to this defendant the motion for judgment as of nonsuit should have been allowed. The waters coming from its hosiery mill were first discharged by the defendant Town through its Muddy Creek sewage plant. After the construction of the plant on Abbotts Creek the defendant Town then diverted the said water into Abbotts Creek. The Knitting company has no control over the disposition of the water. It is disposed of under the sole supervision and control of the defendant Town. Under such circumstances no liability is imposed upon the Knitting Company for any damage caused to the property of the plaintiffs on account of the emptying of such dye water into Abbotts Creek. If there is any damage, sole responsibility therefor rests upon the defendant Town. Hampton v. Spindale, 210 N.C. 546, 187 S.E. 775, 107 A.L.R. 1188; 43 C.J. 1158, 1159; Carmichael v. Texarkana, 8 Cir., 116 F. 845, 58 L.R.A. 911.

The defendant, Town of Kernersville, concedes that its motion for judgment as of nonsuit was properly overruled, but insists that there were errors committed in the trial which entitle it to a new trial.

The liability of the town is not to be determined by any negligent conduct on its part in the operation of its disposal plant. If in so doing it in fact discharges foul matter upon the lands of the plaintiffs, or it so pollutes the water of the stream which crosses plaintiffs' land that foul and noxious odors emanate therefrom it is liable for the resulting damage, even though in so doing it is exercising a governmental function. An action by a land owner against a municipality or corporation possessing the right of condemnation for the maintenance of a continuing nuisance which adversely affects the value of plaintiffs' land is by the demand for permanent damage either by the plaintiff or by the defendant, converted into an action in the nature of a condemnation proceeding for the assessment of damages for the value of the land or easement taken. The assessment of permanent damages for the maintenance of a continuing nuisance as here alleged and the payment of such damages vests the defendant with an easement entitling it to a continued use of the property in the same manner. No matter how urgent the demands of the public may be or how necessary to the progress of the country, no man's property may be taken without compensation. In those cases wherein the right is asserted to pollute streams or otherwise appropriate or subject lands to an additional burden the question of negligence is not involved. Courts uniformly hold that where the action is for damages by way of compensation, which when paid, secures an easement, the owner of the property is entitled to recover. The pollution of a stream is equivalent to a taking and an appropriation in part. Staton v. R. R., 111 N.C. 278, ...