Moser v. City of Burlington
| Decision Date | 07 May 1913 |
| Citation | 78 S.E. 74,162 N.C. 141 |
| Parties | MOSER et al. v. CITY OF BURLINGTON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Alamance County; Frank Carter and H. W Whedbee, Judges.
Action by A. H. Moser and another against the City of Burlington. From a judgment for plaintiffs, defendant appeals. Reversed and new trial ordered.
The damages occasioned by a city so maintaining a sewerage system as to create a private nuisance by polluting a stream are confined to the diminished pecuniary value of the property incident to the wrong.
There was allegation with evidence on part of plaintiffs tending to show that they were the owners of a tract of land in said county, situate on Little Alamance creek; that the house occupied by plaintiff for a residence was near the stream there was also a mill on said creek, operated by water power and a stone dam had been erected across the stream to enable plaintiff to utilize said power, the house referred to being near the pond, etc.; that about one year before action commenced, to wit, in 1909, defendant had installed a sewerage system for the city of Burlington, and in connection therewith had constructed and was operating a disposal plant with septic tank for treatment of sewage before discharging same into said creek, such plant and outlet into the waters of the stream being situate about one and a half miles above plaintiff's property; that, by reason of the existence of said plant and its methods of operation, a large amount of filth, excrement, and sewage and other offensive substances were daily discharged into the waters of said stream above the home of plaintiff, and, in time of freshet, same was brought down and much of it lodged upon the lowlands along said stream and upon lands of plaintiff, causing most offensive smells, odors, etc., thereby creating a nuisance which rendered home of plaintiff most uncomfortable, threatening the health of his family, and causing great and permanent damage, etc., to the property. A recovery for such permanent damage was sought in the action. The defendant, admitting the erection and operation of the sewerage plant and their intention to continue the same, averred and offered evidence tending to show that the plant in question was a modern and up-to-date plant, entirely adequate for the purpose; that it was properly operated; and that no nuisance had been created by defendants and no appreciable damage done to plaintiff's property.
On issues submitted, the jury rendered the following verdict:
Judgment on verdict for plaintiffs, and defendant excepted and appealed.
E. S.W. Dameron and W. H. Carroll, both of Burlington, and Parker & Parker, of Graham, for appellant.
Long & Long, of Graham, and A. L. Brooks, of Greensboro, for appellees.
While the general rule prevails in this state "that, unless a right of action is conferred by statute, a municipal corporation may not be held civilly liable to individuals for failure to perform or neglect in performing duties of a governmental character," it is also well recognized that neither a corporation or other governmental agency is allowed to create or maintain a nuisance causing appreciable damage to the property of a private owner, without being liable for it. As we have recently said in the case of Hines v Rocky Mount, 78 S.E. 510: "To the extent of the damage done to such property, it is regarded and dealt with as a taking or appropriation of the property, and it is well understood that such an interference with the rights of ownership may not be made or authorized except on compensation first made pursuant to the law of the land." This limitation on the more general principle was declared and upheld in a well-considered opinion by Associate Justice Manning in Little v. Lenoir, 151 N.C. 415, 66 S.E. 337, and the position is in accord with right reason and the...
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