Hampton v. Town of Spindale

• Court: North Carolina Supreme Court
• Writing for the Court: SCHENCK, Justice.
• Citation: Hampton v. Town of Spindale, 187 S.E. 775 (N.C. 1936)
• Decision Date: 14 October 1936
• Docket Number: 165.
• Parties: 210 N.C. 546, 107 A.L.R. 1188 v. TOWN OF SPINDALE et al. HAMPTON

187 S.E. 775

210 N.C. 546, 107 A.L.R. 1188

HAMPTON v. TOWN OF SPINDALE et al.

No. 165.

Supreme Court of North Carolina

October 14, 1936

Appeal from Superior Court, Rutherford County; J. W. Pless, Jr. Judge.

Action by Mrs. J. C. Hampton against the Town of Spindale and others. From an order sustaining motions for judgment of nonsuit as to defendants other than the named defendant, as to which plaintiff submitted to a voluntary nonsuit plaintiff appeals.

Affirmed.

Riparian owner whose complaint in action against town, manufacturers and power company alleged only damages from nuisance caused by pollution of stream into which town ran sewage held not entitled to recover from power company for diverting water in stream to furnish town with water, thereby causing water to run through land in diminished quantities.

Varser McIntyre & Henry, of Lumberton, W. B. Matheny, of Forest City, and Quinn, Hamrick & Hamrick, of Rutherfordton, for appellant.

W. S. O'B. Robinson, Jr., W. B. McGuire, Jr., and J. H. Marion, all of Charlotte, for appellee Southern Public Utilities Co.

Guthrie, Pierce & Blakeney, of Charlotte, and J. S. Dockery and W. C. McRorie, both of Rutherfordton, for appellee Spinners Processing Co.

S. P. Dunagan, of Rutherfordton, for appellees Stonecutter Mills Co. and Elmore Corporation.

B. T. Jones, Jr., of Forest City, for appellee Sterling Hosiery Mills, Inc.

J. S. Dockery, of Rutherfordton, for appellees L. M. Carpenter, receiver, and Spencer Corporation.

SCHENCK Justice.

This is an action instituted by the plaintiff as a riparian owner against the defendants to recover for permanent damages to her land alleged to have been proximately caused by joint negligent and unlawful acts of the defendants in maintaining a nuisance on plaintiff's land, consisting of a polluted stream and of polluted soil and contaminated air.

The following facts are admitted without controversy:

1. All the defendants admit their corporate existence.

2. That the defendants admit that the plaintiff is the owner of the land described in the complaint.

3. The town of Spindale owns and operates its sewerage system; no other defendant has any interest in or control over this sewerage system.

4. That the Duke Power Company owns and operates the water works system in the town of Spindale, having purchased same from the town of Spindale on March 27, 1931, and has operated it in the same manner since that time.

5. All of the mill defendants use the town sewer lines; and no one of the defendants has any separate pipe line or outlet to discharge this sewage into the branch or Holland's Creek.

6. All of the manufacturing plants owned by the various defendants discharge their sewage and industrial waste into the said sewerage system of the town of Spindale.

7. The town of Spindale and all of the mill defendants purchase their water from the Duke Power Company, the owner of the waterworks system, and have purchased it since March 27, 1931.

8. Only the sewage arising on the north side of the highway No. 20 is emptied into Holland's creek or the branch emptying into said creek; the sewage arising on the south side is discharged into another pipe line and does not go into this creek.

The plaintiff offered evidence tending to show that the sewage from the sewerage system of the town of Spindale emptied into Holland's creek, which ran through the land of the plaintiff, and that as a result thereof the banks of the stream were caused to cave in and the sewage was deposited on plaintiff's land, causing the vegetation to die, creating obnoxious and nauseating odors, causing the breeding of annoying and poisonous insects, and rendering the land worthless and uninhabitable.

At the close of the plaintiff's evidence, the court sustained motions for judgment of nonsuit lodged by all of the defendants, except the town of Spindale, and the plaintiff submitted to a voluntary nonsuit as to said town and appealed to the Supreme Court, assigning as error the action of the court in sustaining the motions of the Southern Public Utilities Company (now Duke Power Company, and hereinafter called the power company) and of Stonecutter Mills Company, Sterling Hosiery Mills, Inc., Spinners Processing Company, the Elmore Corporation, and L. M. Carpenter, receiver of the Spencer Corporation (hereinafter called the mill companies).

Considering first the appeal from the judgment as of nonsuit as to the mill companies: It will be noted from the admitted facts that the town of Spindale owned the sewerage system, and that no other defendant has any interest or control over said system and that the mill companies discharge their sewage and industrial waste in said sewerage system, and that sewage arising on the north side of highway No. 10 is emptied into Holland's creek. We think, and so hold, that under these facts there was no liability to the plaintiff from the mill companies for any pollution of the stream flowing through the plaintiff's land. The rule is clearly and concisely stated in 43 C.J. on pages 1158,...