Lineberger v. City of Gastonia
| Decision Date | 02 January 1929 |
| Docket Number | 473. |
| Citation | 146 S.E. 79,196 N.C. 445 |
| Parties | LINEBERGER v. CITY OF GASTONIA et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Gaston County; W. F. Harding, Judge.
Action by R. B. Lineberger against the City of Gastonia and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Action for pollution of stream resulting from joint and several acts of defendants held not to misjoin causes of action.
Action to recover damages resulting from a nuisance, caused by continued trespasses of defendants.
It is alleged in the complaint that each of the defendants owns maintains, and operates a sewerage system, from which it discharges sewage into the water of Catawba creek; that said waters, polluted by said sewage, flow over and across the land of plaintiff, thus causing the nuisance, which results in great damage to plaintiff. In this action, plaintiff demands judgment that he recover of defendants, as joint tort-feasors, a large sum as damages.
The city of Gastonia has filed an answer to the complaint denying the allegations therein upon which plaintiff contends that the said city is liable to him for his damages; it contends, however, that if it is liable to plaintiff, its codefendants are also liable for said damages, as tort-feasors, and that each of the defendants should be required to pay its just proportion of any sum which plaintiff may recover in this action as damages resulting from the nuisance created by the joint acts of defendants.
Defendants other than the city of Gastonia, demurred, severally to the complaint, for that (1) there is a misjoinder of parties defendant and of causes of action, and (2) there are now pending in the superior court of Gaston county other actions wherein plaintiff seeks to recover of defendants herein, individually and severally, upon the cause of action alleged in the complaint in this action.
From judgment overruling their several demurrers, defendants, to wit, Winget Yarn Mills Company, Ruby Cotton Mills, Inc., and Dixon Mills, Inc., appealed to the Supreme Court.
Cansler & Cansler, of Charlotte, and Mason & Mason and A. C. Jones, all of Gastonia, for appellants.
J. L. Hamme, of Gastonia, for appellee.
A. E. Woltz and Mangum & Denny, all of Gastonia, for City of Gastonia.
This action was begun on August 9, 1927. Summons issued on said day was duly served on each of the defendants herein.
The original complaint was filed on August 10, 1927. Plaintiff alleges therein that he has suffered damages caused by the creation of a nuisance on his land by the trespasses and wrongful acts of defendants. Each of the defendants owns, maintains, and operates a sewerage system from which it discharges sewage into Catawba creek, above the land of plaintiff. The waters of said creek, polluted by said sewage, flow on and upon plaintiff's land, causing the nuisance which has resulted in damages to plaintiff.
Each of the defendants demurred severally to said complaint, upon the ground that there was a misjoinder therein of parties defendant and of causes of action, in that it appears from the allegations of the complaint that defendants are not and were not joint tort-feasors with respect to the trespasses and wrongful acts alleged therein, but that said trespasses and wrongful acts were and are separate and distinct, each of said defendants acting therein independently of the other defendants, without unity of purpose or concert of action.
Thereafter, on September 2, 1927, by leave of court, plaintiff filed an amended complaint, in which, in addition to the allegations of the original complaint, it is alleged that "defendants have jointly and severally affected the flow of said Creek, contaminated its waters as aforesaid, above the land of plaintiff," and thus caused the nuisance which has resulted in the damages which plaintiff seeks to recover of defendants in this action. Defendants severally demurred to said amended complaint, substantially upon the same grounds as those upon which they demurred to the original complaint.
While the said demurrers were pending, and before the issue thereby raised had been determined, at March term, 1928, by leave of court, plaintiff took a voluntary nonsuit in this action as against all the defendants except the city of Gastonia. Upon motion of plaintiff the action was dismissed as to the defendants Winget Yarn Mills Company, Ruby Cotton Mills, Inc., and Dixon Mills, Inc. Judgment to that effect was signed on February 24, 1928.
Thereafter, at June special term, 1928, defendant city of Gastonia withdrew its demurrer and filed an answer to the complaint, denying all the allegations of said complaint upon which plaintiff contends that said city of Gastonia is liable to plaintiff for the damages, resulting from the nuisance alleged in the complaint. At said June special term, 1928, upon motion of the city of Gastonia, it was ordered that Winget Yarn Mills Company, Ruby Cotton Mills, Inc., and Dixon Mills, Inc., be and they were made parties defendant by summons duly issued and served upon them. In its motion upon which the said order was made, as the ground for the same, the city of Gastonia alleges that if there is any liability on the part of said city in this action, or if the plaintiff has sustained or is sustaining any damage as alleged in the complaint, the said Winget Yarn Mills Company, Ruby Cotton Mills, Inc., and Dixon Mills, Inc., are liable to plaintiff for said damages as joint tort-feasors, upon the allegations of the amended complaint.
After summons had been served on appellants, and after they had been made parties defendant in this action, upon motion of the city of Gastonia, to wit, on August 27, 1928, plaintiff filed an amended complaint, which supersedes the original complaint filed on August 10, 1927, and the amended complaint filed on September 2, 1927. Demurrers have been filed to this last complaint by each of the defendants, other than...
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