Hyatt v. Myers

• Decision Date: 30 June 1874
• Citation: 71 N.C. 271
• Parties: LOCKWOOD HYATT v. R. L. MYERS and another.
• Court: North Carolina Supreme Court

71 N.C. 271

LOCKWOOD HYATT

v.R. L. MYERS and another.

Supreme Court of North Carolina.

June Term, 1874.

When a nuisance has been established by the verdict of a jury, the presiding Judge committed no error in giving the defendant to a certain time to abate it; and if that was not done, in giving the plaintiff the privilege of renewing his motion for an injunction.

This was a CIVIL ACTION for damages, together with an application for an injunction, tried before Moore, J., at the Fall Term, 1874, of BEAUFORT Superior Court.

At the return term his Honor continued the motion for an injunction, for the purpose of submitting the allegations as to the nuisance complained of to a jury, with leave for the plaintiff to renew the motion at that time. His Honor also directed, for the purpose of informing the Court as to the facts upon which the plaintiff's motion for an injunction is based, that in addition to the issues arising from the pleadings, the following will be submitted. Can the plaintiff be protected from the nuisance of smoke and the damages of fire from defendant's engine by the adoption of any means or appliances known to art, while it remains in its present locality, if so, by what means?

On the trial the following issues were prepared and submitted by the plaintiff:

1. Was the plaintiff's residence set on fire by defendant's mill on the 24th of November last, and is said mill highly dangerous in its present location to plaintiff's residence?

2. Does the plaintiff and his family suffer great inconvenience and annoyance from the smoke, soot and cinders being blown from defendant's mill on and in the plaintiff's house, rendering his condition and that of his family uncomfortable and disagreeable, so as to be a nuisance to him?

Defendants offered certain issues which were not allowed to go to the jury by the Court, upon which defendants excepted.

The jury to whom the issues were submitted rendered their verdict that “the defendant's mill was a nuisance to the plaintiff and his family,” having failed to agree as to the other questions submitted to them.

The defendants excepted to the sufficiency of the verdict, because the jury did not pass upon all the issues submitted to them.

The question of damages was not at first submitted to the jury, the plaintiff only claiming nominal damages. In recording the verdict his Honor directed the Clerk to enter of record that the jury assess plaintiff's damages at six pence, to which defendant's counsel objected; whereupon the Court instructed the jury that for every violation of a legal right the plaintiff was entitled at least to nominal damages, and that if the jury believed that the defendant's mill was a nuisance to the plaintiff, it was their duty to assess his damages at least one cent. Defendant objected.

The jury, upon further consideration, assessed nominal damages to the plaintiff, whereupon the following judgment was entered up by the Court.

Upon the finding of the jury the plaintiff renewed his motion for an injunction; and it is considered, &c., that the defendants add twenty feet to the height of the smoke-stack and attach thereto spark arresters, on or before the 1st day of August next. And if upon experiment, the nuisance is not abated by this addition to the smoke-stack, plaintiff has leave to renew his motion for a perpetual injunction. It is considered that plaintiff recover of the defendants the damages, &c.

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