Midgett v. North Carolina State Highway Commission, 33

• Decision Date: 29 September 1965
• Docket Number: No. 33,33
• Citation: 265 N.C. 373,144 S.E.2d 121
• Court: North Carolina Supreme Court
• Parties: Jethro MIDGETT, Jr. v. NORTH CAROLINA STATE HIGHWAY COMMISSION. Mattie MIDGETT v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

Page 121

144 S.E.2d 121

265 N.C. 373

Jethro MIDGETT, Jr. v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

Mattie MIDGETT v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 33.

Supreme Court of North Carolina.

Sept. 29, 1965.

Frank B. Aycock, Jr., and Robert B. Lowry, Elizabeth City, for plaintiffs.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, Staff Atty. T. Buie Costen, Raleigh, Asst. Atty. Gen. Andrew McDaniel and Gerald White, Elizabeth City, for defendant.

MOORE, Justice.

The two cases, above entitled, were consolidated for trial. Plaintiffs allege that defendant, State Highway Commission, in the manner in which it constructed a highway, created a continuing nuisance which has caused permanent damage to their real estate, and by means thereof defendant has appropriated their property for a public purpose, for which they are entitled to compensation.

The Jethro Midgett, Jr., case was here at the Fall Term 1963. We held that the allegations of the complaint state a good cause of action and are sufficient to survive demurrer. Midgett v. North Carolina State Highway Commission, 260 N.C. 241, 132 S.E.2d 599. The facts alleged are fully summarized in that opinion and will not be repeated here. The two cases are in all material aspects identical except the parties plaintiff and their lands.

The cases came on for trial at the January 1965 Session of Dare County Superior Court. At the close of plaintiffs' evidence the court sustained defendant's motion for nonsuit and entered judgment dismissing the action. Plaintiffs contend this was error.

Plaintiffs offered evidence tending to establish these facts:

Old Highway 158 runs along the east side of the Outer Banks in Nags Head Township, Dare County, near and parallel to the ocean front. It is about natural grade level. In 1959 the Highway Commission completed the construction of 158 Bypass, which is about 15 miles long. For the greater part of this distance it is about 500 feet west of old 158 and toward the Sound side of the Outer Banks. The Bypass is generally above natural grade level, ranging from slightly above grade to five feet above. At all points it is at a somewhat higher level than old 158. Plaintiffs own adjoining lots, fronting old 158 and lying between it and the Bypass. They have a number of buildings on the lots and reside there. Their property is in a slight natural depression. There are no dunes between it and the ocean. Where their property is located the terrain is practically level from old 158 to the Bypass; to the west of the Bypass it slopes gradually to the Sound. At or near plaintiffs' property the old Nags Head Road intersects old 158, and runs thence westwardly to the Sound. It ran at natural grade level all the way to the Sound, prior to the construction of the Bypass. And when storms brought water over the dune line, the water followed generally the course of the Nags Head Road, spread out over the depressed area, which served as a wide natural channel, and flowed into the Sound. The Highway Commission constructed the Bypass across the depression at a height of five feet above natural grade. At its intersection with the Bypass the Nags Head Road was raised to the level of the Bypass. Prior to and during the course of construction of the Bypass Jethro Midgett, Jr., and Jethro Midgett, Sr. (husband of plaintiff Mattie Midgett) protested the construction of the Bypass at such level. Jethro, Sr., wrote letters to the governor and the Commission's division engineer. The latter promised to fully investigate and consider the matter. However, the plans were not changed. On 7 March 1962 came the 'Ash Wednesday storm.' It came up suddenly and without warning--it was not a hurricane. Between 4:00 and 5:00 A.M. water began to come over the dune line at the ocean; it came in waves and swells. The water continued coming over until after 7:30 A.M. Water was impounded by the Bypass, and rose until it reached the top and began to run over in places. The water was five feet deep in plaintiffs' yards and on their land, and rose to a height of three feet in their buildings, which were on pilings 'right good way up.' About 8:00 A.M. or shortly thereafter the water cut through the Bypass at two places west of plaintiffs' property and in the vicinity of the old Nags Head Road. At one of these places the entire road surface and fill were washed out, leaving a gap of 30 to 40 feet. When the Bypass gave way the water, flowing to the gaps both from the north and south, began to fall. In the meanwhile the storm had subsided. The water soon flowed into the Sound. Water in as great or greater quantities had come over the dune line during storms which occurred before the Bypass was constructed. This was true of the hurricanes and 'northeasters' of the following dates: 1929, August 1933, September 1936, 1944, and 1956. During some of these storms the water came 'across from the ocean higher than it did at this time.' The Ash Wednesday storm of March 1962 was no more sudden than some of the others. Prior to the construction of the Bypass, water was never more that 18 to 20 inches deep on plaintiffs' lands as a result of any storm.

The question most seriously debated by counsel is whether the evidence shows prima facie that the storm of 7 March 1962 was similar in nature and intensity to the storms of prior years in the Nags Head area and could have been reasonably anticipated by defendant, and was not so extraordinary and unusual as to constitute an 'Act of God.' Pertinent legal principles are set out in Midgett v. North Carolina State Highway Commission, supra (p. 247, 132 S.E.2d p. 606), as follows:

'An Act of God is not a sufficient predicate for an action for damages. The term 'Act of God,' in its legal sense, applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them. (Citing authority). The builder of an obstruction of surface waters is not bound to anticipate unprecedented storms or rainfalls, and is not liable for damages resulting from extraordinary storms and floods. (Citing cases). The owner of a barrier to surface water is not bound to provide against floods of which the usual course of nature affords no premonition. An extraordinary flood is one the coming of which is not to be anticipated from the natural course of nature. An ordinary flood is one, the repetition of which, although at uncertain intervals, can be anticipated. The fact that similar floods had occurred has been held to tend strongly to show that they are not so extraordinary and unusual that they might not have been reasonably expected to occur. (Citing authority). * * * it is ordinarily a question for the jury and the burden is on plaintiff to show that the storm or flood was such as might reasonably have been anticipated and not an Act of God.'

The evidence tends to show that storms, similar in suddenness, force and quantity and flow of water to the Ash Wednesday storm of 1962, occurred at irregular intervals in the Nags Head area prior to 1959. In our opinion this makes out a prima facie showing that the 1962 storm could have been reasonably anticipated.

We find, however, plaintiffs' evidence insufficient in two material aspects:

(1). There is no evidence, of any probative value, tending to show any substantial damages. Plaintiffs introduced evidence of the difference in value of their property before the construction of the Bypass and the value after the construction, in the light of witnesses' 'experiences with water coming over the dune line in past years.' The Bypass was constructed in 1959. If there were damages amounting to a taking, they did not occur until 7 March 1962, the date of the Ash Wednesday storm. The cause of action, if any, accrued only when damage had been inflicted. There can be no recovery of damages before they occur. Midgett v. North Carolina State Highway Commission, supra (260 N.C. p. 249, 132 S.E.2d 599); City of Raleigh v. Edwards, 235 N.C. 671, 71 S.E.2d 396; McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 78 S.E. 980, 6 A.L.R. 1321. There was not, in contemplation of law, any damage to plaintiffs' property prior to 7 March 1962. The evidence referred to above is wholly irrelevant, entirely prospective and speculative, and of no probative value. The evidence of damage, if any there was, should have been directed to the values immediately before and after the storm.

Plaintiffs contend that there is evidence of nominal damages at least and, therefore, the failure to show monetary loss does not justify nonsuit. They cite Johnson v. Sanders, 260 N.C. 291, 132 S.E.2d 582, and Edwards Bros. v. Erwin, 148 N.C. 429, 62 S.E. 545. These cases involved breaches of contract. 'When plaintiff proves breach of contract he is entitled at least to nominal damages.' Sineath v. Katzis, 218 N.C. 740, 12 S.E.2d 671....