Smith v. City of Winston-Salem

• Decision Date: 11 December 1957
• Docket Number: No. 384,WINTON-SALEM,WINSTON-SALEM,384
• Court: North Carolina Supreme Court
• Parties: Harvey Lee SMITH and wife, Margaret H. Smith v. CITY OFN. G. THOMAS and wife, Rudy Thomas, v. CITY OF

Page 835

100 S.E.2d 835

247 N.C. 349

Harvey Lee SMITH and wife, Margaret H. Smith v. CITY OF WINTON-SALEM.

N. G. THOMAS and wife, Rudy Thomas, v. CITY OF WINSTON-SALEM.

No. 384

Supreme Court of North Carolina.

Dec. 11, 1957

Hoyle C. Ripple and Wesley Bailey, Winston-Salem, for plaintiff appellees.

Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendant appellant.

RODMAN, Justice.

These in brief are the allegations of the complaints: In 1947 Weston Corporation, then the owner of land adjacent to Winston-Salem, began the development of the area for residential purposes. As a part of its planned development, the corporation laid out and installed a sewerage system to which the houses to be erected could be connected. This sewerage system was connected at defendant's corporate limits with the city's system and terminated in a pump house of defendant some distance beyond its corporate boundaries. The sewage was there pumped and transferred to defendant's disposal plant. The city, as a condition to the connection with its sewerage system, required Weston to construct its system in accordance with plans and specifications provided by defendant. The system was so constructed. It was also made a condition to the connection that if the corporate limits of the defendant should be enlarged, the portion of the system included within the enlarged corporate limits should become the property of the city. In 1949 the city limits were enlarged and a portion of the development not including the residences of plaintiffs was taken in the city. Thereupon, the part of the system constructed by Weston and included within the corporate limits became the property of defendant. To service this portion of the system constructed by Weston and maintained for the benefit of the residents of defendant city, it was necessary to use the remainder of the system constructed by Weston and particularly the mains passing the homes of plaintiffs. In the summer of 1950 Weston sold and conveyed to defendant all of its water and sewer lines and easements for the maintenance thereof lying beyond the city limits. The consideration for this conveyance was the agreement of the city to operate, repair, and maintain the system. Subsequent thereto the city sold numerous rights to tap into this sewerage system. Plaintiffs, subsequent to the summer of 1950, purchased homes in the area developed by Weston Corporation. These homes were erected by Weston Corporation prior to 1949 and each, when constructed, was provided with bath and toilet facilities which were connected with the sewerage system constructed by Weston Corporation. The connections were in accordance with specifications of the city and were approved by it. Beginning in 1950 or 1951 defendant failed to adequately maintain the sewerage system which Weston Corporation had constructed for the benefit of the home owners in its development. The main sewerage line in the streets serving as outlets for plaintiffs' sewerage system separated and sagged because of broken joints and other defects in the city's mains. The mains were negligently permitted to fill up and sewage from the mains was forced back into the line connecting plaintiffs' homes with the street mains. The back pressure on the service connection was so great that the commode and bath tub in plaintiffs' homes repeatedly overflowed. Under the providsions of the city's charter, plaintiffs were required to connect their homes to the system so maintained and operated by the city, and the services so furnished were in conformity with the conditions and rates provided in the city ordinances.

Defendant admitted the construction of the the sewer system by Weston Corporation under plans prepared or approved by it; the connection of the two systems, the inclusion of a portion of the Weston system in the corporate limits, a conveyance of the system by Weston to the city on the condition that the city would maintain and operate pursuant to the terms of its ordinances. It denied plaintiffs were injured by any default on its part. As a further defense it pleaded the provision of its ordinances duly enacted pursuant to statutory authority. The ordinances pleaded as a defense provided: (1) property owners were, under conditions in which plaintiffs were situate, required to install backwater or backpressure valves, and (2) the terms under which the city would provide sewerage service to property owners beyond the corporate limits. The portion of that ordinance material to this case follows: 'Connections to the city sewer system outside the corporate limits shall be made in its entirety by the owner, his contractor or agent, under permit from the Public Works Department upon the payment of the required fee. * * * All risks shall be assumed by the applicants and the owners of the property supplied with the sewer, and the city shall not be responsible for any damage or injury to person or property by reason of said system, its construction, maintenance or repair; the city shall not be liable to anyone for the proper operation or maintenance of the sewer system, or any part thereof * * *.'

Plaintiffs offered evidence which was sufficient for a jury to find that defendant negligently failed to maintain or operate its sewer system; that it permitted the mains in the street in front of plaintiffs' home to break and stop up, thereby preventing the sewage from flowing to the pumping plant, creating a pressure in the mains sufficient to back the sewage up in the line connecting plaintiffs' homes with the mains, overflowing the fixtures and flooding the homes; that the connection between the mains in the street and the fixtures in the plaintiffs' homes was made by or under the supervision of the city and without the installation of the backpressure valves called for in the ordinance pleaded by defendant.

In addition to the negligence alleged as the basis of plaintiffs' causes of action, they offered evidence sufficient for a jury to find that the negligent failure of defendant to maintain and operate this system caused the sewage to overflow from the manholes in the streets, flooding the streets, and from the flooded streets onto the properties of plaintiffs, that this sewerage passing from the mains out of the manholes and onto the lands of plaintiffs caused serious damage to their property, left it in a foul condition and created a hazard to the health of plaintiffs and members of their families.

Defendant, at the conclusion of the evidence, moved for nonsuits. Its motions were denied. It tendered issues based on the pleadings. The court declined to submit the issues so tendered, but as determinative of defedant's liability submitted an issue in each case reading: 'Was the plaintiffs' property, located on * * * damaged by a nuisance created by the negligence of the defendant, as alleged in the Complaint?'

The court charged the jury in accord with the defendant's contention, that plaintiffs nonresidents of the city, connected with the sewer system of their own volition and because of the contractual relationship, under the ordinance exculpating defendant from liability for negligence, no damage could be recovered which resulted from the flooding of the homes by backing sewage into and overflowing the fixtures in the homes. He further charged that the failure to maintain the system and the resulting flooding of the streets from the manholes and the drainage of this sewage onto the lots of plaintiffs was a nuisance or trespass for which damages could be awarded.

Defendant excepted to the issues submitted and to the charge permitting plaintiffs to recover on the basis of damage resulting from a nuisance created by defendant's...