Hampton v. North Carolina Pulp Co.
| Decision Date | 10 November 1943 |
| Docket Number | 92. |
| Citation | 27 S.E.2d 538,223 N.C. 535 |
| Parties | HAMPTON v. NORTH CAROLINA PULP CO. |
| Court | North Carolina Supreme Court |
This action was brought by the plaintiff, Hampton to recover damages for an injury to his fishery and business on Roanoke River, which it is alleged was brought about by the wrongful act of the defendant through the discharge of deleterious or noxious substances into the river from its pulp plant located below plaintiff's fishery, near the City of Plymouth.
It is alleged in the complaint that the plaintiff owns certain lands upon the river bank adjacent to the waters of the river, whereupon there has been established a fishery; and that plaintiff and those who preceded him have conducted there a fishery for commercially taking and distributing fish for more than twenty-five years; that during a certain period the defendant operated a plant for the manufacture of bleached and unbleached sulphate pulp, and turned into the waters of Roanoke River opposite its plant a great volume of poisonous, deleterious and objectionable waste and substances, inimical to the fish inhabiting said waters to such an extent and in such volume and quantity as to interfere with the free and long established passage migration and habit of said fish from the ocean on their way to the spawning grounds in the upper reaches of the Roanoke River, and past the properties of the plaintiff, thus to a large extent destroying the fish, and diverting said migratory pilgrimage, so as to seriously damage the business of the plaintiff and the profit from the use of his premises.
The complaint further alleges that an agreement, or contract, was made between the defendant and the North Carolina State Highway Commission, an agent of the State of North Carolina prior to the erection of the defendant's plant, under which, in consideration of the construction or improvement of a certain road very valuable to the operations of the defendant, and leading to or near the site of its manufacturing plant, defendant would refrain from discharging deleterious or injurious substances from its proposed plant which might destroy or divert the fish, or otherwise interrupt or damage seasonable fishing operations of such persons as might be engaged in fishing, including the plaintiff. That the said agreement was violated, although the road was constructed by the aforesaid agency upon the faith and consideration of defendant's promise.
It is alleged that the discharge of poisonous and deleterious substances from defendant's plant constitutes a wrongful and unlawful trespass and nuisance, destroying the fish inhabiting the waters in front of plaintiff's premises, and greatly damaging the plaintiff and diminishing the usufruct of his property and his fishing business during the period set out, whereby plaintiff was damaged in the sum of $3,000.
Plaintiff expressly waives recovery for any sum in excess of $3,000 for damages for the designated period, and demands judgment in that amount, and prays for such other and further relief as he may be entitled to receive.
Upon notice, the plaintiff was required to make his complaint more definite by particularizing in certain respects: First, whether the agreement mentioned in the complaint was made orally or in writing; second, that the agreement and documents constituting it be set forth in full; third, in stating at what time the agreement was made; fourth, in stating for what period of time the agreement is claimed to have extended.
In answer to this order the plaintiff amended his complaint in the particulars requested, and appended to the amendment certain communications and documents alleged to have passed between the plaintiff and Honorable Capus M. Waynick, Chairman of the North Carolina Highway Commission, allegedly constituting the agreement referred to.
The defendant then demurred to the complaint upon the following grounds:
The court had no jurisdiction over the subject of the action, inasmuch as an action involving the same subject matter was instituted in this court during the months of March and April, 1941, and was on the 7th day of May, 1941, by order of the Clerk of the Court, duly removed to the United States District Court for the Eastern District of North Carolina pursuant to the statutes of the United States; and as subsequently thereto, on or about the 2nd day of April, 1943, judgment was entered by Honorable I.M. Meekins, Judge for the said United States District Court, dismissing the plaintiff's complaint on the ground that it failed to state a cause of action. 49 F.Supp. 625. The demurrer further points out that as a result of the removal to the United States District Court for the Eastern District of North Carolina, the subject of the action passed from the jurisdiction of the State Court into that of the United States District Court, thereby tolling the jurisdiction of the State Court; and that, moreover, the judgment of the United States District Court became and is res judicata and binding upon the State Court.
That it appears on the face of the complaint that there is another action pending between the parties for the same cause; inasmuch as an action involving the same subject matter was instituted as foresaid in this court during the months of March and April, and was on the said 7th day of May, 1941, duly removed to the United States District Court and the action therein dismissed as aforesaid by an order and judgment of said court entered on the 2nd day of April, 1943; and that said United States District Court still has jurisdiction of said action.
That it appears on the face of the complaint, as amended, that the particularized complaint does not state facts sufficient to constitute a cause of action in that:
a. It fails to allege any property right of the plaintiff which was destroyed or injured by defendant.
b. It fails to allege any injury sustained by plaintiff which was not sustained by him in common with all the people of this State.
c. It fails to allege any injury to, or destruction of, any right of plaintiff which was not a right vested in common in all the people of this State.
d. Any alleged contractual rights of plaintiff are based upon a contract which purported to bind the defendant, or its predecessor, to comply with the law of this State, which said contract was therefore without consideration and void.
e. Any contract alleged in said complaint was not made for the benefit of plaintiff, nor was it intended for his benefit.
f. Any contract alleged in said complaint was made by and between the defendant and the State of North Carolina, or an agency thereof, and plaintiff, as an individual citizen of this State, acquired no individual rights thereunder upon which he may sue in this, or any other, court.
g. Any cause of action for the breach of said contract is barred by the statute of limitations.
Treating as a motion in the cause that portion of the demurrer which asks for the dismissal of the action, both for the alleged reason that there is another suit upon the same cause of action pending between the parties in the Federal Court and, further, that the matter in controversy had been settled and become res judicata because of a judgment in the Federal Court, the court declined to dismiss the action for either of said causes, inasmuch as the facts relating to them did not appear upon the face of the complaint; but sustained the demurrer to the complaint as not stating a cause of action. From the refusal to dismiss the action for the causes stated, defendant appealed; and from the judgment sustaining the demurrer to the complaint as not stating a cause of action, plaintiff appealed.
Carl L. Bailey, of Plymouth, and Ehringhaus & Ehringhaus, of Raleigh, for plaintiff.
Norman & Rodman, of Plymouth, and Josiah W. Bailey, of Raleigh (Whyte, Hirschboeck & McKinnon, of Milwaukee, Wis., of counsel), for defendant.
Defendant's Appeal.
The appeal of the defendant is from the refusal of the trial judge to dismiss the action for want of jurisdiction, on the ground that another action is pending between the same parties with respect to the same cause of action; and on the ground that the present controversy has become res judicata because of a final judgment in the cause in the Federal Court. It is not necessary to point out the contradictory nature of these pleas. While the trial judge, finding the facts, noted that the case in the Federal Court referred to by the defendant it was still pending on appeal in that Court, he found, and correctly we think, that a different subject matter was involved. This is sufficient to dispose of the plea of res judicata also. This plea, however, could not be presented by demurrer. Since the facts supporting it, if they exist at all, do not appear upon the face of the complaint, the plea must be taken by answer. Gibson v Gordon, 213 N.C. 666, 197 S.E. 135; Davis v. Warren, 208 N.C. 174, 179 S.E. 329; Thorpe v. Parker, 199 N.C. 451, 154 S.E. 674; Smith v. Cashie & Chowan R. & Lumber Co., 140 N.C. 375, 377, 53 S.E. 233. The necessity of taking this plea by answer may be referred to C.S. § 519(2), since such a plea necessarily involves new matter constituting a defense. We would not consider it wise, even if our hands were not stayed, to relax a procedure so definitely tending to prevent confusion. A judgment of a Federal Court upon the identical facts, that is, the identical res or subject matter of the action, will be given full faith and credit in the State Court when pleaded as res judicata according to the practice of the Court, no matter how mistaken that court may have been in its interpretation of state law; but there is no rule which will compel the State courts to accept the...
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