Hall v. De Weld Mica Corp., 306

• Decision Date: 23 May 1956
• Docket Number: No. 306,306
• Citation: 244 N.C. 182,93 S.E.2d 56
• Parties: Eugene HALL and wife, Nellie Hall, v. DE WELD MICA CORPORATION.
• Court: North Carolina Supreme Court

Page 56

93 S.E.2d 56

244 N.C. 182

Eugene HALL and wife, Nellie Hall, v. DE WELD MICA CORPORATION.

No. 306.

Supreme Court of North Carolina.

May 23, 1956.

R.W. Wilson, Burnsville, for plaintiffs, appellees.

Fouts & Watson, G.D. Bailey and W.E. Anglin, Burnsville, for defendant, appellant.

PARKER, JUSTICE.

The defendant demurs on the ground of a misjoinder of parties and causes. When a demurrer on that ground is overruled, Rule 4(a) Rules of Practice in the Supreme Court, 243 N.C. iii does not apply.

The defendant contends that there is a misjoinder of parties and causes, because the plaintiffs seek to recover damages and pray for a permanent injunction for: "(1) trespas on their property; (2) labor in keeping things clean; (3) exposure to silicosis; (4) fear and mental anguish for threat of their health and their children." The defendant further states in its brief: "As to their labor, their exposure to silicosis and their fear and mental anguish, each plaintiff has separate interests and separate damages, and the actions, therefore, are improperly united in this one action. G.S. § 1-123; G.S. § 1-127." The above is the complete argument and citation of authority in its brief.

The complaint alleges a direct invasion of plaintiff's property rights by vast clouds of dust charged with, and partly made up of, minute and invisible particles of silicon dioxide, which produces silicosis, settling on and covering their property, both inside and outside their home, which injurious acts are the immediate result of the operation of a mica mining and separating plant 200 yards from their home by the defendant. This is a trespass, and gives rise to a cause of action. McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Gwaltney v. Scottish Carolina Timber & Land Co., 115 N.C. 579, 20 S.E. 465; Newsom v. Anderson, 24 N.C. 42, 37 Am.Dec. 406; 87 C.J.S., Trespass, § 13, pp. 966-967.

In Kosich v. Poultrymen's Service Corp., 136 N.J.Eq. 571, 43 A.2d 15, 19, the Court said, quoting from Hennessy v. Carmony, 50 N.J.Eq. 616, 25 A. 374: My neighbor " 'has no right * * * to throw sand, earth, or water upon my land in ever so small a quantity. To do so is an invasion of property, and a trespass, and to continue to do so constitutes a nuisance.' "

The sole allegation of ownership of the property by the plaintiffs is in paragraph two of their complaint, which reads: "That the plaintiffs own and have their home in South Toe Township in this State and County, where they have a four-room house and where they live and where they have four children, ages two to eleven years."

This Court said in Holloway v. Green, 167 N.C. 91, 83 S.E. 243, 245: "It is also a well-recognized principle that in a conveyance to husband and wife they take by entireties, with the right of survivorship (Bruce v. Nicholson, 109 N.C. 202, 13 N.E. 790), but that a conveyance may be made to them as tenants in common, when there is no survivorship (Eason v. Eason, 159 N.C. 539, 75 S.E. 797). See also: Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472.

It does not appear from the complaint as to whether the plaintiffs own their home as joint tenants, tenants in common or tenants by the entirety, but does clearly appear that both are in the actual possession of their ome, that both have an interest in it, and both want the relief demanded in the complaint.

G.S. § 1-68--Who May Be Plaintiffs--reads: "All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, either jointly, severally, or in the alternative * * *." The object of this statute is to permit all persons, who come within its terms, to unite as parties plaintiff, so that a single judgment may be rendered completely determining the controversy for the protection of all concerned.

In Pake v. Morris, 230 N.C. 424, 53 S.E.2d 300, the plaintiffs were husband and wife, who were the owners and in possession of the tract of land described in the complaint. They brought an action to enjoin an alleged threatened nuisance in the operation of a fish factory in close proximity to their home, which allegedly rendered their home practically uninhabitable and greatly impaired their comfort and health. A verdict and judgment in defendant's favor was affirmed. There was no contention that there was a misjoinder of parties and causes.

In Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682, the plaintiffs were husband and wife, who were seized in fee simple as tenants by the entireties of nine acres of land. They brought an action to recover temporary damages for a private nuisance and to abate such nuisance by injunction upon the alleged ground of damage to their property rights. In the opinion the Court said: " * * * the evidence is ample to establish the existence of an actionable private nuisance, entitling the plaintiffs to recover temporary damages from the High Penn Oil Company." Emphasis added. further on in the opinion it is said: " * * * the evidence is ample to establish the existence of an abatable private nuisance, entitling the plaintiffs to such mandatory or prohibitory injunctive relief as may be required to prevent the High Penn Oil Company from continuing the nuisance." Emphasis added. There was no contention of a misjoinder of parties and causes. See West v. Aberdeen & R.F.R. Co., 140 N.C. 620, 53 S.E. 477; Jones v. W.A. Smith & Co., 149...