Donnell v. City of Greensboro
| Citation | 80 S.E. 377,164 N.C. 330 |
| Parties | DONNELL v. CITY OF GREENSBORO. |
| Decision Date | 13 December 1913 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Guilford County; Shaw, Judge.
Suit by Jas. D. Donnell against the City of Greensboro. Judgment for plaintiff, and defendant appeals. Affirmed.
A special finding should be liberally construed, with a view to sustaining it, if possible, and to that end it should be construed with the pleadings, evidence, and instructions.
Civil action to obtain an injunction restraining defendant from emptying its sewage into Muddy branch and North Buffalo creek and to recover damages on account of same, tried before his honor, Thos. J. Shaw, judge, and a jury at August term, 1913 of the superior court of Guilford county. There was evidence on part of plaintiff tending to show: That he lived 4 1/2 miles east of Greensboro and was the owner of about 434 acres of land lying on or adjacent to North Buffalo creek and Muddy branch, a tributary of same, and flowing into North Buffalo creek above plaintiff's land. That the land consisted of three tracts. One of 177 acres, bought in 1870, lying on both sides of Buffalo creek, having 20 acres bottom on one side and 30 acres on the other. A second tract of 197 acres adjoining the former. This tract does not abut directly upon the creek, but extends at one point to within 10 feet of same, and on this tract plaintiff's residence is situate being about one-half mile from the creek. And a 60-acre tract adjoining the others, situate one-half mile from the creek and bought by plaintiff since institution of this present suit. That some time prior to the institution of the present suit the defendant had installed a permanent sewerage system and was thereby discharging a large portion of its sewage into said streams above the lands of plaintiff, and by reason of same large quantities of offensive matter was cast out and upon plaintiff's bottom lands, spoiling the grass and other produce of said lands, and rendering same for certain purposes unfitted for profitable use, and further causing most offensive smells and odors, thereby creating a nuisance and rendering the said lands, and particularly the home of plaintiff, most uncomfortable, threatening the health of his family, and causing great and permanent damage to his property. Plaintiff further alleged and there was some evidence tending to show that before discharging the sewage into said streams, defendant had not subjected the same to proper and adequate treatment, or complied with the regulations in reference thereto, and by reason of the city's negligent default in this respect there had been increase in the damage suffered by plaintiff. The defendant denied the existence of any nuisance, and alleged that if any damage was suffered by plaintiff, it was not near so great as claimed. It was alleged, further, that the defendants had constructed its sewerage system under authority conferred by the Legislature upon the city, and before emptying its sewage into said streams it was adequately and properly dealt with, and subjected to treatment by septic tanks established and operated pursuant to regulations made by the State Board of Health, under an act of the Legislature conferring full power to make the same. See Laws 1909, c. 793 (Pell's Supplement, § 3058A). By reason of said treatment the said sewage was rendered comparatively harmless and caused no appreciable damage to plaintiff's land. It was further alleged that these streams afforded the natural drainage for all that portion of the city's sewage which was discharged into same, and that there was no increase of the damage by reason of said discharge. And, further, that a large part of the conditions complained of were due and owing to the existence of two extensive mill settlements in the northern part of the city, from which the dyestuffs and other objectionable matter are also emptied into said streams above the lands of plaintiff. There was much testimony introduced in support of defendant's different positions, and it was insisted that on the facts in evidence no actionable wrong against the city had been shown.
The court charged the jury, excluding from their consideration any and all damages claimed by reason of the 197 and 60 acre tracts, it appearing that neither of these abutted on the creek, and the following verdict was rendered:
"(1) Has the plaintiff's property been damaged on account of the manner and method employed by the defendant in disposing of its sewage in North Buffalo creek, as alleged? Answer: Yes.
(2) What permanent damages is plaintiff entitled to recover of the defendant on account of the construction and operation of its said sewerage system and disposal plant? Answer: $1,000.
(3) Has the defendant constructed its sewerage disposal plants upon North Buffalo creek and Muddy branch in accordance with plans approved by the State Board of Health? Answer: Yes.
(4) If not, did the defendant's failure to so construct said disposal plants create a nuisance, as alleged in the complaint? Answer:
(5) Are said plants being operated in accordance with the rules and directions of the State Board of Health? Answer: Yes, in regard to Muddy branch. No, in regard to Buffalo creek septic tank.
(6) If not, is the manner in which said plants are being operated creating a nuisance, as alleged in the plaintiff's complaint? Answer: No."
Judgment on verdict that plaintiff recover the $1,000 and costs, etc., and defendant excepted and appealed.
A. Wayland Cooke and A. L. Brooks, both of Greensboro, for appellant.
Justice & Broadhurst, of Greensboro, for appellee.
HOKE, J. (after stating the facts as above).
On the first and second issues, and by reference to the pleadings, the evidence, and the charge of the court, the plaintiff has been allowed to recover $1,000, the damage done his property by the creation and maintenance of an actionable nuisance on the part of defendant, and on careful consideration of the record, we find no reason for disturbing the result of the trial.
The decisions of this state are in approval of the principle that the owner can recover such damage for a wrong of this character, and that the right is not affected by the fact that the acts complained of were done in the exercise of governmental functions, or by express municipal or legislative authority; the position being that the damage arising from the...
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