McKinney v. Deneen
| Decision Date | 08 March 1950 |
| Docket Number | No. 162,162 |
| Court | North Carolina Supreme Court |
| Parties | MCKINNEY et ux. v. DENEEN et al. |
R. W. Wilson, Burnsville, for plaintiffs appellants.
W. E. Anglin, Burnsville, for defendant appellee Deneen.
Fouts & Watson, Burnsville, and J. H. Winston, Johnson City, Tenn., for defendant appellee Southern Mica Co., Inc.
Under the decisions of this Court, there is no misjoinder of parties and causes of action. Lineberger v. Gastonia, 196 N.C. 445, 146 S.E. 79; Stowe v. Gastonia, 231 N.C. 157, 56 S.E.2d 413.
Plaintiffs do not allege merely that defendants, in getting out and washing the products of mica mines, have allowed 'waste, water and sediment to run off into the natural' course of South Toe River. They allege that defendants, in the operation of their plants, pumped 'a stream of water through pipes, hose and nozzles and boring into the earth and cutting loose thousands of tons of earth and washing it down into the said stream' and have otherwise discharged into the stream earth, sediment and waste which have materially decreased the value of their property. They further allege that 'the acts of the defendants in pumping the water far from the channel of the stream and high onto the hills, and using it to wash out deep cannons (sic) through the hills is not similar to the usage made of the waters of the stream by riparian owners who live along the stream * * *'
In short, the plaintiffs allege a direct invasion of and entry upon their land which amounts to a taking or appropriation of Their property. They seek compensation therefor.
That a citizen may not be deprived of his property even for a public use, without compensation is fundamental. U. S. Const., Amend. XIV; N. C. Const., art. I, sec. 17, art. I, sec. 35; Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407; Wagner v. Town of Conover, 200 N.C. 82, 156 S.E. 167.
It is true that the government, in the exercise of its police power, may regulate and place restrictions upon the use of property in order to secure the general safety, public welfare, and good morals of the community, and any incidental loss occasioned thereby is not compensable. But a direct entry upon and appropriation of private property for a public use does not come within the rule.
Furthermore, the Act, G.S. § 74-31, upon which the defendants rely is in derogation of the common law and must be strictly construed. In re Pitchi's Estate N.C., 57 S.E.2d 649. While it...
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Department of Transp. v. M.M. Fowler, Inc.
...shall be . . . deprived of his . . . property, but by the law of the land." N.C. Const. art. I, § 19; see also McKinney v. Deneen, 231 N.C. 540, 542, 58 S.E.2d 107, 109 (1950) (citing N.C. Const. of 1868, art. I, § 17, the predecessor of the current N.C. Const. art. I, § 19). In other words......
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...this Court has adhered unvaryingly to the principle that a negative easement of this kind is a vested interest in land. McKinney v. Deneen, 231 N.C. 540, 58 S.E.2d 107; Hildebrand v. Southern Bell Telephone & Telegraph Co., 219 N.C. 402, 14 S.E.2d 252; City of Charlotte v. Heath, 226 N.C. 7......
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...this Court has adhered unvaryingly to the principle that a negative easement of this kind is a vested interest in land. McKinney v. Deneen, 231 N.C. 540, 58 S.E.2d 107; Hildebrand v. Southern Bell Telephone & Telegraph Co., 219 N.C. 402, 14 S.E.2d 252; City of Charlotte v. Heath, 226 N.C. 7......
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...192 S.E.2d 273, 277 (1972). Statutes in derogation of the common law likewise should be strictly construed. McKinney v. Deneen, 231 N.C. 540, 542, 58 S.E.2d 107, 109 (1950). In passing the Tort Claims Act, the legislature incorporated the common law of negligence. MacFarlane v. N.C. Wildlif......