Rhodes Et Ux v. City Of Durham

• Decision Date: 20 May 1914
• Docket Number: (Nos. 357, 365.)
• Citation: 165 N.C. 679,81 S.E. 938
• Court: North Carolina Supreme Court
• Parties: RHODES et ux. v. CITY OF DURHAM.

(165 N.C. 679)

81 S.E. 938

RHODES et ux.

v.CITY OF DURHAM.

(Nos. 357, 365.)

Supreme Court of North Carolina.

May 20, 1914.

1. Municipal Corporations (§ 838*)—Sewer System—Nuisance—Injuries to Property Owner—City's Liability.

Where a city, by the pollution of the water course by the discharge of sewage therein, created a nuisance, causing damage to an owner of property along the stream, he was entitled to recover damages to the extent of the value that his property was impaired, notwithstanding the acts complained of were done by the city in the exercise of its governmental functions.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1787; Dec. Dig. § 838.*]

2. Eminent Domain (§ 271*) — Nuisance (§ 42*)—Permanent Injury.

Where real property is injured by structures or conditions permanent in their nature, and their extent and maintenance is guaranteed or protected by the power of eminent domain, or because the interest of the public therein is of such a nature that right of abatement at the instance of the individual is of necessity denied, either plaintiff or defendant may demand that permanent damages be awarded; the proceedings being in the nature of one to condemn an easement.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. SJ 725-736, 741; Dec. Dig. § 271;* Nuisance, Cent. Dig. §§ 101-103: Dec. Dig. § 42.*]

3. Municipal Corporations (§ 838*)—Pollution—Injuries to Property.

Where plaintiff's property extended to within 50 yards of a stream, and was injured by a discharge of sewage into the stream by defendant city, the fact that the property did not abut on the stream, and that there had been no physical invasion of plaintiff's rights in the same, did not prevent plaintiff from recovering permanent damages resulting to his land from the nuisance.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1787; Dec. Dig. § 838.*]

4. Municipal Corporations (§ 838*)—Permanent Damaoes—Abatement.

Where plaintiff's land was injured by the pollution of a stream used to receive the sewage of defendant city it was no defense to an award of permanent damages for the nuisance so created that the conditions complained of might be modified or altogether removed by the alteration and improvement of the sewage system.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1787; Dec. Dig. § 838.*]

Clark, C. J., and Brown, J., dissenting.

Appeal from Superior Court, Durham County; Lyon, Judge.

Action by G. A. Rhodes and wife against the City of Durham to recover damages for the maintenance of an actionable nuisance by defendant, consisting of the pollution of the water course by the discharge of sewage therein. Judgment for plaintiffs, and both parties appeal. Affirmed.

On issues submitted, the jury rendered the following verdict:

"(1) Are the plaintiffs the owners of the land described in the complaint? Answer: Yes.

"(2) Has the plaintiffs' land been damaged by the installation and maintenance of the sewerage system, as alleged in the complaint? Answer: Yes.

"(3) What permanent damages are plaintiffs entitled to recover, if any? Answer: $200.

"(4) What damages, if any, are plaintiffs entitled to recover up to the beginning of this action? Answer: 5 cents."

Judgment on verdict for the permanent damages, and defendant excepted and appealed.

Mantling, Everett & Kitchin, of Durham, for plaintiffs.

Bryant & Brogden, of Durham, and Charles Scarlett, of Durham, for defendant.

Defendant's Appeal.

HOKE, J. [1] We have held, in several recent cases, that damages may be recovered for a wrong of this character, and, to the extent that the value of plaintiff's property is impaired, the right Is not affected because the acts complained of were done in the exercise of governmental functions. Donnell v. City of Greensboro, 164 N. C. 331, 80 S. E. 377, and authorities cited.

Our decisions are also in support of the proposition that where the injuries are by reason of structures or conditions permanent in their nature, and their existence and maintenance is guaranteed or protected by the power of eminent domain, or because the interest of the public therein is of such an exigent nature that right of abatement at the instance of an individual is of necessity denied, it is open to either plaintiff or defendant to demand that permanent damages be awarded; the proceedings in such cases to some extent taking on the nature of condemning an easement. Brown v. Chemical Co., 81 S. E. 463, at present term; Id., 162 N. C. 83, 77 S. E. 1102; Harper v. Lenoir, 152 N. C. 723, 68 S. E. 228; Geer v. Water Co., 127 N. C. 349, 37 S. E. 474; Parker v. B. R., 119 N. C. 677, 25 S. E. 722; Ridley v. R. R., 118 N. C. 996, 24 S. E. 730, 32 L. R. A. 708. A principle and method now made peremptory by statute, in case of railroads. Revisal, § 394.

Speaking to the general principle, in the case of public roads, in Elliott on Streets and Roads, the author says: "Sec. 488. All damages are recoverable in One Action. The change of grade is a permanent matter, and all resulting injury must be recovered for in one action, for the property owner cannot maintain successive actions as each fresh annoyance or injury occurs. The reason for this rule is not far to seek. What Is done under color of legislative authority and is of a permanent nature works an injury as soon as it is done, if not done as the statute requires, and the Injury which then accrues is, in legal contemplation, all that can accrue, for the complainant is not confined to a recovery for past or present damages, but may also recover prospective damages resulting from the wrong. It is evident that a different rule would lead to a multiplicity of actions and produce injustice and confusion. It is in strict harmony with the rule which prevails, and has long prevailed, in cases where property is seized under the right of eminent domain."

These authorities and the principles upon which they rest are in full support of his honor's judgment for the permanent damages awarded in the verdict.

It Is contended for defendant that damages of this character should not be allowed, because the property of plaintiff does not abut directly upon the stream and there has been no physical invasion of plaintiff's rights in the same; but this position, in our opinion, cannot be sustained. The property injured extends to within 50 yards of the stream, and the evidence tends to show and the jury has established that defendant wrongfully maintains there permanent conditions amounting to a nuisance, bringing plaintiff's property directly within the harmful effects and sensibly impairing its value. In Donnell v. Greensboro, supra, the court, in speaking to a similar suggestion, said: "In such case, and except as affected by the existence of certain rights peculiar to riparian ownership, a recovery does not seem to depend on whether the damage is caused through the medium of polluted water or noxious air; the injury is considered a taking or appropriation of the property to that extent, and compensation may be awarded." A position fully sustained by authority, whenever, as in this case, the nuisance is of a permanent character and the source of injury is protected from interference by legislative sanction and the predominance of the public interests. King v. Vicksburg, etc., Ry., 88 Miss. 456, 42 South. 204, 6 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749; Gulf & Colorado R. R. v. Moseley, 161 Fed. 72, 88 C. C. A. 236, 20 L. R. A. (N. S.) 885; Terminal Co. v. Lel-lyett, 114 Tenn. 368, 85 S. W. 881; Middle-kamp v. Ditch Co., 46 Colo. 102, 103 Pac. 280, 23 L. R. A. (N. S.) 795; 21 A. & E. Enc. pp. 732, 733; 1 Lewis, Eminent Domain (3d Ed.) § 230. In the citation to A. & E. Enc, supra, it is said: "The same rule [damages for permanent nuisances] is applicable where the source of injury is permanent in its nature and will continue to be productive of injury independent of any subsequent wrongful act. The nuisances coming within the latter classification consist of the annoyance, discomfort, or injury necessarily incidental to the operation or conduct of a business or erection authorized by law; and the rule is applicable only when the plaintiff elects to consider the nuisance permanent, and therefore licenses it, or when the defendant's use of his property constitutes a pro tanto taking of the plaintiff's property." And In the citation to Lewis on Eminent Domain, supra, referring to the kind of injuries which may be treated as a taking of property, the author says: 'The owner of land has a right that the air which comes upon his premises shall come in its natural condition, free from artificial impurities. This right has its correlative obligation, which is that one must not use his own premises in such a manner as to discharge into the atmosphere of his neighbor dust, smoke, noxious gases, or other foreign matter which substantially affect its wholesomeness. This right is very fully treated by Mr. Wood inhis work on Nuisances, and a reference thereto will suffice. The right to pure air is property, and to interfere with the right for public use is to take property. There can be no question that the erection of gas works, or the setting up of any other noxious trade, in the vicinity of my premises, that emits noxious odors, which are sent over my lands in quantity and volume sufficient to essentially interfere with the use of that air for the ordinary purposes of breath and life, so as to constitute a legal nuisance, is such a taking of my property as the Legislature may not permit...