Rhyne v. Town of Mount Holly

• Decision Date: 14 January 1960
• Docket Number: No. 176,176
• Parties: Henry A. RHYNE v. TOWN of MOUNT HOLLY, a Municipal Corporation.
• Court: North Carolina Supreme Court

Page 40

112 S.E.2d 40

251 N.C. 521

Henry A. RHYNE v. TOWN of MOUNT HOLLY, a Municipal Corporation.

No. 176.

Supreme Court of North Carolina.

Jan. 14, 1960.

Fairley & Hamrick and Jack T. Hamilton, Charlotte, for plaintiff, appellee.

Childers & Fowler, Mount Holly, for defendant, appellant.

BOBBITT, Justice.

Apparently, plaintiff abandoned his alleged second cause of action. In any event, plaintiff's evidence as to damages did not relate to defendant's alleged failure to remove "said unsightly pile" from plaintiff's lot.

There was no exception to the issues as submitted, nor does it appear that either party tendered any other issue(s).

It is well established that an appeal follows the theory of the trial. Pegg v. Gray, 240 N.C. 548, 555, 82 S.E.2d 757; Strong, North Carolina Index, Vol. 1, Appeal and Error § 1, and cases cited.

While other elements of damages are referred to in plaintiff's allegations, plaintiff's evidence as to the alleged impairment of the reasonable market value of his property relates solely to defendant's destruction of the trees thereon; and the case was submitted to the jury on this theory.

With reference to the first issue, the court instructed the jury, in substance, as follows: That the ordinance gave defendant the right to go upon plaintiff's vacant lot and cut or shrub down within four inches of the ground all weeds, grass or other noxious growth, and if defendant did no more than this, the jury's answer to the first issue would be, "No"; that oak trees the size of a person's wrist, twelve to fifteen feet high, are not weeds, grass or other noxious growth, and if the jury found, by the greater weight of the evidence, that defendant, after going upon plaintiff's vacant lot, cut such oak trees, such conduct would constitute a trespass upon plaintiff's property and the jury's answer to the first issue would be, "Yes."

Defendant does not deny its entry and acts upon plaintiff's property, nor does it assert that those who performed the work acted otherwise than in accordance with its instructions. Rather, it asserts what was actually done was justified by its (pleaded) ordinance.

The charter of the Town of Mount Holly is not in the record. Absent a special charter provision, presumably defendant relies upon G.S. § 160-55, which authorizes a municipal corporation to enact ordinances "for abating or preventing nuisances of any kind, and for preserving the health of the citizens." The court, in accordance with defendant's contention, conducted the trial on the theory that the ordinance is valid; and we approve the instruction to the effect that oak trees of the size specified are not "weeds, grass or other noxious growth," within the meaning of the ordinance, and that the ordinance did not justify defendant's destruction thereof.

The verdict establishes that defendant, having lawfully entered, damaged plaintiff's property by acts in excess of the authority conferred by the provisions of the ordinance. In this connection, it is noted that defendant's evidence tended to show that the market value of plaintiff's lot was enhanced, not impaired, by its entry and acts thereon. If so, plaintiff was not entitled to recover more than nominal damages, e.g., a penny. The court so instructed the jury.

Even so, defendant contends it was engaged in the performance of a governmental function, namely, in the exercise of its police powers to protect the health of its citizens and under such circumstances is not liable for the tortious acts of its officials and agents, and that the court should have granted its motion for judgment of involuntary nonsuit on this ground.

It is first noted that the basis of plaintiff's recovery is the fact that defendant cut and destroyed the oak trees on its land. The court disregarded all other alleged elements of damage.

Defendant alleged that plaintiff's lot was in such condition as to constitute "a menace to the general health of the people of the Town of Mount Holly." While the greater part of defendant's evidence relates to the "unsightly" appearance of plaintiff's lot prior to defendant's entry and acts thereon, there is some evidence tending to support defendant's said allegation. Defendant contends it was engaged in the abatement of such nuisance and hence was performing a governmental function.

While not referred to in the pleadings, the judge's charge, or in the briefs, G.S. § 160-234 and G.S. § 160-200, subds. 6, 26, 28, confer upon municipal corporations the power to abate nuisances, "whether on public or private property," G.S. § 160-200, subd. 26, that are detrimental to public health. G.S. § 160-234 provides: "The governing body, or officer or officers (of a municipal corporation) who may be designated for this purpose by the governing body, shall have power summarily to remove, abate, or remedy, or cause to be removed abated, or remedied, everything in the city limits, or within a mile of such limits, which is dangerous or prejudicial to the public health; and the expense of such action shall be paid by the person in default, and, if not paid, shall be a lien upon the land or premises where the trouble arose, and shall be collected as unpaid taxes."

In Harrington v. Greenville, 159 N.C. 632, 75 S.E. 849, 850, Hoke, J. (later C.J.), states: "The general power to abate nuisances conferred on municipalities by section 2929 and other sections of the Revisal, and the power to regulate, inspect, and condemn buildings contained in sections 2981 et seq. are clearly governmental in character, and for negligent default on the part of the city and its officers and agents no action lies; none having been given by the law." Section 2929 of the Revisal is now codified as G.S. § 160-55.

We reach this crucial question: Where defendant, acting under its power to abate a nuisance constituting a menace to health, goes upon plaintiff's lot, without plaintiff's permission or consent, for the purpose of eradicating what defendant deems to be such nuisance, and in so doing destroys trees thereon that do not in fact constitute a nuisance, is plaintiff's right to recover compensation for the impairment in value of his property caused by the destruction of the trees defeated because defendant was then engaged in the performance of a governmental function?

The legal principle on which defendant relies was stated by Hoke, J. (later C.J.), as follows: "It is well recognized with us that, unless a right of action is given by statute, municipal corporations may not be held civilly liable to individuals for 'neglect to perform or negligence in performing' duties which are governmental in their nature, and including generally all duties existent or imposed upon them by law solely for the public benefit." Harrington v. Greenville, supra.

Upon this legal principle, recovery has been denied in many cases, based upon a variety of complaints against municipal corporations e.g., temporary suspension (by ordinance) of an ordinance prohibiting firing of fireworks, Hill v. Board of Aldermen of City of Charlotte, 72 N.C. 55; failure to enforce an ordinance regulating maintenance of "hog-pens and privies," causing plaintiff's illness, Hull v. Roxboro, 142 N.C. 453, 55 S.E. 351, 12 L.R.A., N.S., 638; failure to prohibit boys from playing baseball on public streets, Goodwin v. Reidsville, 160 N.C. 411, 76 S.E. 232, 42 L.R.A.,N.S., 862; failure to provide an attendant at jail to protect prisoners against fire, Nichols v. Fountain, 165 N.C. 166, 80 S.E. 1059, 52 L.R.A., N.S., 942; Dixon v. Wake Forest, 224 N.C. 624, 31 S.E.2d 853; Gentry v. Hot Springs, 227 N.C. 665, 44 S.E.2d 85; negligence of jailers in locking vicious prisoner in cell with plaintiff without searching prisoner for matches, Parks v. Princeton, 217 N.C. 361, 8 S.E.2d 217; neglect of jailers to maintain a warm jail during cold night, Moffitt v. Asheville, 103 N.C. 237, 9 S.E. 695; negligent construction and operation of an incinerator, causing injury to city employee, Scales v. Winston-Salem, 189 N.C. 469, 127 S.E. 543; negligently permitting children to play near a burning trash pile, Snider v. High Point, 168 N.C. 608, 85 S.E. 15; failure to provide adequate water under sufficient pressure to extinguish fire, Howland v. City of Asheville, 174 N.C. 749, 94 S.E. 524, L.R.A. 1918B, 728; negligent operation of trash collection vehicle, James v. Charlotte, 183 N.C. 630, 112 S.E. 423; Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325; Stephenson v. Raleigh, 232 N.C. 42, 59 S.E.2d 195; negligent operation of truck used to repair traffic signals, Hodges v. Charlotte, 214 N.C. 737, 200 S.E. 889; negligent operation of truck used in maintenance of street lighting system, Beach v. Town of Tarboro, 225 N.C. 26, 33 S.E.2d 64; neglect to observe sanitary precautions in discharging sewage from free public sewerage system into stream running near decedent's house causing illness resulting in death, Metz v. Asheville, 150 N.C. 748, 64 S.E. 881, 22 L.R.A., N.S., 940; negligently permitting culvert to become choked and out of repair, causing illness, Williams v. Greenville, 130 N.C. 93, 40 S.E. 977, 57 L.R.A. 207; dumping garbage in hole near plaintiff's house, causing illness, Hines v. City of Rocky Mount, 162 N.C. 409, 78 S.E. 510, L.R.A. 1915C, 751; alleged negligent failure to condemn and remove buildings which were "fire traps," Harrington v. Greenville, supra; negligent failure to furnish suitable fire-fighting equipment, resulting in personal injury to fireman, Peterson v. Wilmington, 130 N.C. 76, 40 S.E. 853, 56 L.R.A. 959; arrest made in brutal manner by policeman known by city officials to be cruel in making arrests, McIlhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L.R.A. 470; negligence in connection with installation, maintenance and timing of traffic signals, Hamilton v. Hamlet, 238 N.C. 741, 78 S.E.2d 770; and negligence in continuing franchise to public utility furnishing gas to residents of...