Evans v. Wilmington & W. R. Co.

• Decision Date: 16 March 1887
• Citation: 1 S.E. 529,96 N.C. 45
• Court: North Carolina Supreme Court
• Parties: EVANS and Wife v. WILMINGTON & W. R. Co.

96 N.C. 45

1 S.E. 529

EVANS and Wife

v.WILMINGTON & W. R. Co.

Supreme Court of North Carolina.

March 16, 1887.

Appeal from superior court, Halifax county.

Thos. N. Hill and A. J. Burton, for plaintiffs.

R. O. Burton and Day & Zollicoffer, for defendant.

SMITH, C. J.

The defendant company, in December, 1884, became the owners of a certain lot in the town of Weldon, on which, for years previous, had been erected a hotel used and maintained for that purpose, and so kept up by the defendant. The plaintiff Augusta owns a lot containing three buildings,-her dwelling, a butcher's shop, and a confectionary store,-and also a lot known as Delmonico's, formerly used as a billiard and bar-room, latterly occupied by tenants. A drain or culvert has been constructed, which receives the filth from the hotel, and conveys it under ground some distance, and empties in a ditch on plaintiff's land, thereby producing, as they allege, offensive and noxious vapors and smells, causing great discomfort to themselves and other occupants, and endangering the health of themselves and families. The suit is to restrain the defendant from maintaining the nuisance, and to recover damages for injury already suffered. The defendant, in its answer, enters into an explanation of the origin and use of the drain, by former proprietors of the hotel, as the natural outlet for the water; of its construction, in 1885, of an earth-covered sewer, extending to the plaintiff's lot; of the use of this drain for the sewerage from their several lots; and denies the charge that any detriment to their health and comfort has come from the use of the drain by defendant, or is receiving, requiring any restraint in the use of its property to be put on defendant, and not capable of reparation in damages.

The pleadings being in and on oath, the plaintiffs, after notice, applied for a temporary injunction, which, after several postponements by consent, was heard upon numerous affidavits, besides the complaint and answer filed by the parties, before GUDGER, J., at chambers, in Jackson, on October 7, 1886, when the following judgment was rendered:

“It is adjudged and ordered that upon the plaintiffs giving the undertaking required in section 341 of the Code, in the sum of five hundred dollars, the defendant be enjoined and restrained from causing and permitting water and filth to flow and empty on the lands of the plaintiffs described in the complaint, or into the drain or ditch passing through said lands from the hotel owned by said company, situate in Weldon, and which is described in the complaint, and from the privies, kitchen, and wash-room of said hotel, till the hearing of this cause. From this order the defendant prays an appeal to the supreme court, which is granted. Notice of appeal waived. Appealbond fixed at fifty dollars.

[Signed] “J. C. L. GUDGER, Judge Presiding.”

While this is a case in which we are required to examine the proofs, and pass upon their sufficiency, to warrant the interlocutory order of restraint, we do not, after reviewing and considering it, deem it necessary to do more than state the conditions produced. While much of the testimony...