Dayton v. City of Asheville
| Decision Date | 21 February 1923 |
| Docket Number | 544. |
| Citation | 115 S.E. 827 |
| Parties | 185 N.C. 12, 30 A.L.R. 1186 v. CITY OF ASHEVILLE. DAYTON ET UX. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Lane, Judge.
Action by T. J. Dayton and wife against the City of Asheville. From a judgment for plaintiffs, defendant appeals. New trial.
A city having a right to erect an incinerator and to maintain it for the benefit of the public in the exercise of a governmental duty will not be held civilly liable to individuals for injuries resulting therefrom when properly built and operated, upon the theory of a trespass, in the absence of some legislative authority conferring such right of action.
George Pennell and J. W. Haynes, both of Asheville, for appellant.
Pritchard & Pritchard, and Stevens, Anderson & Stevens, all of Asheville, for appellees.
This action was instituted on May 6, 1921, by T. J. Dayton and wife against the city of Asheville to recover damages or compensation for the partial taking or injury to two houses and lots, located in said city; the alleged injury or damage resulting, according to the plaintiffs' contention, from the construction, maintenance, and operation by the defendant, in the exercise of a governmental duty, of an incinerator, for the purpose of destroying and burning city garbage, refuse, etc., on an adjacent lot or one in close proximity to plaintiffs' property. There was allegation and evidence tending to show that said incinerator was built by the defendant in the year 1913; that it was put into use or operation in 1914; and that, by reason of its erection location, and continuous operation in close proximity to plaintiffs' property, the said houses and lots, from time to time, have been, and continue to be, enveloped in smoke arising therefrom, which said smoke, together with grease and ashes, constantly settle upon, damage, and injure plaintiffs' houses and lots and every particle of household furniture and other articles located in said houses or on said lots. There was also allegation and proof to the effect that the carcasses of dead animals, together with obnoxious decayed vegetable matter, are constantly hauled to said incinerator for the purpose of being destroyed and burned therein, and that foul, offensive, and noxious odors caused by the operation and maintenance of said incinerator constantly pollute the atmosphere in the immediate vicinity of plaintiffs' houses and lots to such an extent as to be a menace and danger to the health of persons occupying said premises, and rendering those portions of plaintiffs' lots, which were formerly fit for cultivation and gardening, now usless for such purposes.
The defendant denies any and all liability, and its evidence is in sharp conflict with that of the plaintiffs; but the chief question debated before us, and upon which the defendant mainly relies, is that the plaintiffs' cause of action, if any they have, is barred by the three-year statute of limitations and the following provision in the defendant's charter:
Plaintiffs' first claim for damages was filed April 23, 1921. Upon the issue as to whether the cause of action is barred, his honor directed an answer in favor of the plaintiffs; and, to this instruction, the defendant excepts and assigns same as error. It is true his honor limited the jury in its award of damages to such as had been sustained in the three years next immediately preceding the commencement of the action, together with such further damages as were likely to occur in the future; and this upon the theory of a renewing, intermittent, and recurring trespass. Duval v. R. R., 161 N.C. 448, 77 S.E. 311; Roberts v. Baldwin, 155 N.C. 279, 71 S.E. 319. But this, we think, was a misconception of the real basis of plaintiffs' cause of action. The complaint, giving it a liberal construction (C. S. § 535), contains, not only an allegation of trespass, but also a charge of taking or appropriating plaintiffs' property without just compensation. The alleged injury consists in the doing of a lawful act, but in such a manner as to amount to a partial taking of the property in question for a public use. Mason v. Durham, 175 N.C. 638, 96 S.E. 110; Rhodes v. Durham, 165 N.C. 679, 81 S.E. 938; Donnell v. Greensboro, 164 N.C. 330, 80 S.E. 377; Hines v. Rocky Mount, 162 N.C. 410, 78 S.E. 510, L. R. A. 1915C, 751, Ann. Cas. 1915A, 132; Moser v. Burlington, 162 N.C. 141, 78 S.E. 74; Little v. Lenoir, 151 N.C. 415, 66 S.E. 337; Selma v. Jones, 202 Ala. 82, 79 So. 476, L. R. A. 1918F, 1020; 10 R. C. L. 71.
Indeed, the city having a right to erect the incinerator and to maintain it for the benefit of the public, in the exercise of a governmental duty, it will not be held civilly liable to individuals for injuries resulting therefrom, when properly built and operated, upon the theory of a trespass, in the absence of some legislative authority or a statute conferring such right of action. James v. Charlotte, 183 N.C. 630, 112 S.E. 423, and cases there cited. But the denial of a right to recover against a municipality for an alleged injury upon the theory of its constituting a trespass does not militate against the right of recovery for a taking or appropriating, in whole or in part, of property for a public use without due compensation. Lloyd v. Venable, 168 N.C. 531, 84 S.E. 855; Jacobs v. Seattle, 93 Wash. 171, 160 P. 299, L. R. A. 1917B, 329 (incinerator), reported on second appeal in 100 Wash. 524, 171 P. 662, L. R. A. 1918E, 131; Keene v. Huntington, 79 W.Va. 713, 92 S.E. 119, L. R. A. 1917F, 475 (incinerator); Donnell v. Greensboro, 164 N.C. 330, 80 S.E. 377; Metz v. Asheville, 150 N.C. 748, 64 S.E. 881, 22 L. R. A. (N. S.) 940. "Public necessity may justify the taking, but cannot justify the taking without compensation." Platt Bros. v. Waterbury, 72 Conn. 531, 45 A. 154, 48 L. R. A. 691, 77 Am. St. Rep. 335. See, also, Boise Valley Const. Co. v. Kroeger, 17 Idaho, 384, 105 P. 1070, 28 L. R. A. (N. S.) 968, and note, which contains a valuable collection of the authorities on the subject.
The distinction here made becomes important upon the question of the statute of limitations and when the cause of action first accrued. It is conceded that for an irregular, intermittent and variable trespass, if the defendant be liable for such a tort at all, plaintiffs would be entitled to recover any and all such damages as have accrued within the three years next immediately preceding...
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