Privett v. Whitaker

• Court: North Carolina Supreme Court
• Writing for the Court: RODMAN
• Citation: Privett v. Whitaker, 73 N.C. 554 (N.C. 1875)
• Decision Date: 30 June 1875
• Parties: B. M. PRIVETT v. J. B. WHITAKER, Sen., and others.

73 N.C. 554

B. M. PRIVETT

v.J. B. WHITAKER, Sen., and others.

Supreme Court of North Carolina.

June Term, 1875.

One may be entitled to compensation for the destruction of a house which was lawfully erected, but there can be no vested right to prolong a nuisance after it has been declared such. Therefore, where A had begun to erect a house in the town of G., and shortly afterwards an ordinance was passed by the proper authorities of the town declaring it a nuisance to erect buildings of a certain character in certain portions of the town, and the provisions of the ordinance included A's house, in an action by A against B, the mayor of the town of G., to recover damages for preventing A from erecting the house: Held, that the defendant was not liable.

This was a CIVIL ACTION, to recover damages, tried before Seymour, J., at Special Term, 1875, WAYNE Superior Court.

The facts were agreed upon by the parties to the actions, and his Honor gave judgment for the defendant. The facts necessary to an understanding of the case, as decided, are stated in the opinion of the Court.

From the judgment of his Honor the plaintiff appealed.

Smith & Strong, for the appellant .

Faircloth & Grainger, contra .

RODMAN, J.

The material facts of this case are as follows:

On 27th June, 1872, the plaintiff began to erect a wooden building in a certain locality in the town of Goldsboro. At that time, there was no by-law of the town forbidding the erection of wooden buildings in that particular part of the town, or declaring such buildings nuisances, although there was to certain other parts of the town.

On the next day (28th June) the commissioners adopted an ordinance forbidding the erection of wooden buildings within certain limits, which embraced the land of the plaintiff, under a penalty of forfeiting $20 for every week for which the building was allowed to continue.

After the passage of this ordinance, the defendant Whitaker, who was Mayor of the town, directed the police officers to prevent the further erection of plaintiff's building, which they did by going on his land and keeping his workmen therefrom. The other defendants had no other connexion with the trespass, than that they were commissioners of the town, and concurred in adopting the ordinance of 28th June.

Afterwards, viz., on 27th January, 1873, (Private Acts 1872-'73, chap. 3, 376,) an act was passed authorizing the corporation of Goldsboro to prevent the erection of wooden buildings in such parts of said town as they might think proper; and also to pull down such buildings then existing in certain parts of the town, on making compensation to the owners.

This act cannot affect the present case.

We were not referred to any prior acts respecting the town of Goldsboro. Whatever, for other purposes, may be the character of acts incorporating towns, as public or private, we consider that they are private, so far that a Court is not bound to take judicial notice of their provisions. In fact it would be impracticable to do so.

We assume therefore that Goldsboro was an incorporated town, and that the corporate authority possessed the powers conferred on such bodies by Revised Code, chap. 3, one of which is to pass laws to abate and prevent nuisances, (sec. 15.)

It will be convenient, before considering the defence of the Mayor, to dispose of the case as to his co-defendants, the commissioners. We think it clear that their bare concurrence by their votes in favor of the ordinance above referred to, did not amount to a participation in the alleged trespass. The terms of the ordinance make this too clear to require any discussion.

Now as to the Mayor. His official right to abate or prevent a public nuisance, must be admitted as a general proposition. For the purpose of the present discussion, public nuisances may be divided into four classes:

1. Those which are necessarily and obviously such, as a fence or building obstructing a highway. These may be abated by the officer who has charge of the highway, either by, or without authority from a Court, and also in like manner, by any individual who is spccially injured thereby.

2. Those which are nuisances or not, according...