Spaugh v. City of Winston-Salem

• Decision Date: 19 November 1958
• Docket Number: No. 387,WINSTON-SALEM,387
• Parties: Carl F. SPAUGH, Sr., and wife, Opal Spaugh, v. CITY OF
• Court: North Carolina Supreme Court

Page 610

105 S.E.2d 610

249 N.C. 194

Carl F. SPAUGH, Sr., and wife, Opal Spaugh, v. CITY OF WINSTON-SALEM.

No. 387.

Supreme Court of North Carolina.

Nov. 19, 1958.

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

Deal, Hutchins & Minor, Winston-Salem, for plaintiffs, appellees.

BOBBITT, Justice.

Defendant's only assignments of error are based on its exceptions to the overruling of its motions for judgment of nonsuit. The only motion to be considered is that made by defendant at the close of all the evidence. G.S. § 1-183; Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E.2d 541.

While the record is silent as to the ground(s) on which defendant based its motion for judgment of nonsuit when it was considered and overruled by Judge Gwyn, defendant asserts here a fatal variance between plaintiffs' allegata and probata as the ground on which its motion should have been allowed, citing Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786, and similar cases. The rule is well established that judgment of nonsuit is proper when there is a fatal variance between a plaintiff's allegata and probata. Whether the variance is to be deemed material (fatal) must be resolved in the light of the facts of each case. G.S. § 1-168; Dennis v. Albemarle, 242 N.C. 263, 87 S.E.2d 561.

The gist of defendant's argument is that plaintiffs alleged a cause of action to recover permanent damages based on "a permanent and continuing and recurring nuisance upon the plaintiff's lands"; and that, since plaintiffs did not seek or allege damages of a temporary nature, the court erred in overruling defendant's motion for nonsuit.

To consider defendant's position in proper perspective, it should be noted that defendant did not bring forward any exception relating to what transpired prior or subsequent to the overruling of its motion for judgment of nonsuit. Whether there was a fatal variance between plaintiffs' allegata and probata was determinable at the conclusion of all the evidence. Errors, if any, occurring thereafter, have no bearing upon the correctness of the court's ruling on defendant's motion for judgment of nonsuit.

As stated by Barnhill, J. (later C.J.), in Clinard v. Kernersville, 215 N.C. 745, 748, 3 S.E.2d 267, 270: "An action by a landowner against a municipality or corporation possessing the right of condemnation for the maintenance of a continuing nuisance which adversely affects the value of plaintiffs' land is, by a demand for permanent damage either by the plaintiff or by the defendant, converted into an action in the nature of a condemnation proceedings for the assessment of damages for the value of the land or easement taken. The assessment of permanent damages for the maintenance of a continuing nuisance as here alleged and the payment of such damages vests the defendant with an easement entitling it to a continued use of the property in the same manner." Whether permanent damages may be awarded does not depend upon the consent of both parties as in a similar action against a private manufacturing corporation. Aydlett v. Carolina By-Products Co., 215 N.C. 700, 2 S.E.2d 881.

A cause of action consists of the facts alleged in the complaint. G.S. § 1-122; Lassiter v. Norfolk & C.R.R., 136 N.C. 89, 48 S.E. 642. The plaintiffs alleged damages to their lands on account of the pollution of Salem Creek by defendant. True, plaintiffs alleged and sought to recover permanent damages and offered much evidence in support of these allegations. (Note: Defendant abandoned all its exceptions to the admission of such evidence.) Nothing else appearing, plaintiffs were entitled to recover permanent damages for the partial taking of their lands, vesting in defendant a permanent easement in accordance with legal principles declared and applied in Clinard v. Kernersville, supra; Id., 217 N.C. 686, 9 S.E.2d 381, and in Eller v. Board of Education, 242 N.C. 584, 89 S.E.2d 144; Id., 244 N.C. 529, 94 S.E.2d 478.

We need not determine whether plaintiffs, when all the evidence is considered, were entitled to have submitted an issue as to permanent damages. Suffice to say, there was no variance between plaintiffs' allegata and probata.

Defendant, in support of its allegations, offered evidence tending to show that the damage, if any, to plaintiffs' lands caused by the pollution of Salem Creek would be abated upon completion of its new and modern sewage treatment plant. The court, (not the jury,) accepted such assurances, and...