Harrington v. Town of Greenville

• Decision Date: 25 September 1912
• Citation: 75 S.E. 849,159 N.C. 632
• Parties: HARRINGTON v. TOWN OF GREENVILLE.
• Court: North Carolina Supreme Court

75 S.E. 849

159 N.C. 632

HARRINGTON v. TOWN OF GREENVILLE.

Supreme Court of North Carolina

September 25, 1912

Appeal from Superior Court, Pitt County; Foushee, Judge.

Action by W. H. Harrington against the Town of Greenville. Judgment for defendant; plaintiff appeals. Affirmed.

Civil action heard on demurrer to the complaint before his honor H. A. Foushee, judge, at February term, 1911, of the superior court of Pitt county. The material portions of the complaint are as follows: "That from time to time, for a number of years prior to February 23, 1910, this plaintiff repeatedly called the attention of the governing body of said town of Greenville to, and requested them, as members, both personally and in meeting, of said board of alderman, to examine the dangerous condition of the property known as King's stables, the buildings of Sam Cherry, and the old Flanagan buggy shops as a source of danger from fire, which buildings were unoccupied and worthless, being mere hulls and fire traps. (4) That the plaintiff repeatedly requested said board of aldermen to condemn and have removed said buildings because they were dangerous as a source of fire; and that the defendant, under its powers, authorities, and duties conferred and imposed upon it by the general law and by special acts of the General Assembly, had full power and authority to condemn and remove the same. (5) That the defendant negligently, disregardful of the interest and rights of its property holders and residents, permitted said property to stand as fire traps and gambling dens for negroes, to the great jeopardy and peril of adjacent property owners. (6) That as a result of said negligence on the part of the defendant, and permitting said property to stand as a source of fire, owing to its rotten, decayed condition and dry, accumulated material, on the night of the 23d of February, 1910, it became the source of a fire which destroyed the adjacent property of this plaintiff, to his great damage. (7) That as a result of said fire, and as a result of an inadequate supply of water with sufficient force and quantity, and an inadequate supply of hose, hydrants, and fire equipments and force, this plaintiff suffered the loss of his above-described property, to wit, one brick stable and one brick store and the contents of the same, consisting of lumber, one buggy, and other property, in the sum of $2,000." The court entered judgment sustaining defendant's demurrer, and the plaintiff excepted and appealed.

Col Harry Skinner and S. J. Everett, both of Greenville, for appellant.

F. M. Wooten, of Greenville, for appellee.

HOKE J.

As we interpret the complaint, plaintiff states and intends to state his grievance in two aspects: (1) That his property was destroyed by reason of negligent failure of the city of Greenville to abate a nuisance which threatened the result. (2) That the injury arose, in whole or in part, from negligent default in equipment and operation of a fire department maintained by the city for the public benefit, and under our decisions both questions must be resolved against him.

It is well recognized with us that, unless a right of action is given by statute, municipal corporations may not be held civilly liable to individuals for "neglect to perform or negligence in performing" duties which are governmental in their nature, and including generally all duties existent or imposed upon them by law solely for the public benefit. McIlhenney v. City of Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L. R. A. 470; Moffitt v. City of Asheville, 103 N.C. 237, 9 S.E. 695, 14 Am. St. Rep 810; Hill v. City of Charlotte, 72 N.C. 55, 21 Am. Rep. 451. The general power to abate nuisances conferred on municipalities by section 2929 and other sections of the Revisal, and the powers to regulate, inspect, and condemn buildings contained in sections 2981 et seq., are clearly governmental in character, and for negligent default on the part of the city and its officers and agents no action lies; none...