Jones v. Lassiter

• Decision Date: 03 November 1915
• Docket Number: 262.
• Citation: 86 S.E. 710,169 N.C. 750
• Parties: JONES v. LASSITER ET AL.
• Court: North Carolina Supreme Court

86 S.E. 710

169 N.C. 750

JONES v. LASSITER ET AL.

No. 262.

Supreme Court of North Carolina

November 3, 1915

Appeal from Superior Court, Wake County; Cooke, Judge.

Action by M. G. Jones against R. G. Lassiterand the City of Raleigh. From an order dissolving an injunction, plaintiff appeals. Affirmed.

Injunction until final hearing, where relief sought involves stopping of important public works, held properly refused.

Douglass & Douglass, of Raleigh, for appellant.

Armistead Jones & Son, of Raleigh, and B. H. Perry, of Henderson, for appellee Lassiter.

BROWN J.

This action is instituted to recover damages for alleged injury to plaintiff's property, health, and business, caused by the operation of an asphalt mixing plant near her residence in the city of Raleigh, and to perpetually enjoin the defendant Lassiter from the operation thereof. On the 14th day of October, 1914, Lassiter entered into a contract with the city of Raleigh to pave its streets with a combination of asphalt and concrete, carried through a high heating process and required to be under a sufficient heat at the time of laying same upon the streets, and it was necessary that the plant be located as near to the streets to be improved as practicable so that the heat to a high degree might be retained in transit to the street. The defendant Lassiter located his plant upon the right of way of the Seaboard Railway, in the midst of various shops and foundries there situated, and about 175 feet from plaintiff's dwelling.

The judge below finds: (1) That the gritty dust that came from the grinding of the stone when the wind was blowing from a southern direction was thrown upon and against her house and furniture, thereby greatly damaging her property; (2) that the throwing out of the said fine particles of dust and the emission of smoke was a menace to her health, and that of others in her dwelling house, and which was being used as a boarding house, and that because of the condition referred to her boarders were threatening to leave, which would seriously affect her means of securing a livelihood; (3) that the fine particles of gritty dust and smoke, being blown into her eyes, have produced soreness in one of her eyes, which will at least become chronic if the condition continues. It is admitted that the defendants are solvent and fully able to respond in damages for any amount that may be recovered. The court also finds that the...