Webb v. Virginia-Carolina Chemical Co.
| Decision Date | 12 January 1916 |
| Docket Number | 314. |
| Parties | WEBB v. VIRGINIA-CAROLINA CHEMICAL CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Durham County; Daniels, Judge.
Action by S.W. Webb against the Virginia-Carolina Chemical Company. From a judgment for defendant, plaintiff excepts and appeals. Affirmed.
A factory for the production of commercial fertilizer and guano by the sulphuric acid process is not a nuisance per se, but its character as a nuisance depends upon its situation environment, and method of operation.
Plaintiff alleged, and offered evidence tending to show, that he was the owner of several residential houses in East Durham, N C., in the vicinity of the guano factory of defendant company, and for a period occupied one of them as his home that, for some time prior to the institution of the action defendant, in the operation of the said factory, had maintained an actionable nuisance, and particularly in the use and management of certain sulphuric acid chambers, and by reason of continuous offensive and harmful odors proceeding therefrom great wrong and injury was done to plaintiff; that defendant began the operation of its sulphuric acid chambers on June 21, 1911, and the present action was commenced on December 9, 1912. There was allegation, also, on part of plaintiff that, by reason of the maintenance of said nuisance, the property of plaintiff was greatly depreciated in value, and permanent damage done plaintiff as owner and occupant of the same, and plaintiff tendered an issue and offered evidence in support of his claim in that aspect, which was rejected, and plaintiff duly excepted. Defendant denied the maintenance of any nuisance, contending further that, in any event, the injury, if any, caused by the operation of the factory, was not one for which the entire damage could be recovered in one action at plaintiff's election. On issues submitted, the jury rendered the following verdict:
"(1) Is the plaintiff the owner and in possession of the property described in the complaint? Answer: Yes.
(2) Has plaintiff's property been damaged by the wrongful acts of the defendant, as alleged in the complaint? Answer: No.
(3) What damages, if any, is the plaintiff entitled to recover up to the commencement of this action? Answer: ______."
Judgment on verdict for defendant, and plaintiff excepted and appealed, assigning for error, chiefly, that the issue as to permanent damages was refused and the evidence offered to sustain it was excluded.
Manning, Everett & Kitchin, of Durham, for appellant.
Bryant & Brogden and Fuller & Reade, all of Durham, for appellee.
In actions to recover damages for nuisances and wrongs of like character, when the cause of the injury is of a permanent nature, the true test by which to determine the right of plaintiff, at his election, to recover his entire damages, past, present, and prospective, in one action, has been said to depend on "whether the whole injury results from the original wrongful act, or from the wrongful continuance of the state of facts produced by these acts"--in other words, whether the wrongful act is single and entire, though causing subsequent and continuous injury, or whether a defendant wrongfully continues and maintains the conditions which result in continued or recurring damages. In this connection it has been further said that the entire damages may be recovered when the "source of the injury is permanent in its nature and will continue to be productive of injury independent of any subsequent wrongful act." Mast v. Sapp, 140 N.C. 533, 53 S.E. 350, 5 L. R. A. (N. S.) 379, 111 Am. St. Rep. 864, 6 Ann. Cas. 384; Ridley v. Railroad, 118 N.C. 996-997, 24 S.E. 730, 32 L. R. A. 708; Troy v. Railroad, 23 N.H. 83, 55 Am. Dec. 177; Hargreaves v. Kimberly, 26 W.Va. 787, 53 Am. Rep. 121; Railway v. Mihlman, 17 Kan. 224; Mayor v. Comar, 88 Tenn. 415, 12 S.W. 1027, 7 L. R. A. 465; 21 A. & E. Enc. pp. 732, 733; 1 Sedgwick on Damages (9th Ed.) §§ 91-94, inclusive; Hale on Damages, p. 82. In some cases on this subject, it has been held that, when one erects a substantial building or other structure of a permanent character on his own land, which wrongfully invades the rights of an adjoining proprietor by the creation of a nuisance or trespass, the injured party may "accept or ratify the feature of permanency and sue at once for the entire damage. Chicago Forge & Bolt Co. v. Sanche et al., 35 Ill.App. 174.
But, in cases strictly of private ownership, the weight of authority seems to be that separate actions must be brought for the continuing or recurrent wrong, and plaintiff can only recover damages to the time of action commenced; in this state however, to the time of trial. Ridley v. Railroad, 118 N.C. supra; Adams v. Railroad, 110 N.C. 325, 14 S.E. 857; Aldworth v. City, 153 Mass. 53, 26 N.E. 229, 10 L. R. A. 210, 25 Am. St. Rep. 608; Mayor of Nashville v. Comar, supra; Brewing Co. v. Compton, 142 Ill. 511, 32 N.E. 693, 18 L. R. A. 390, 34 Am. St. Rep. 92; Sloss, etc., Iron & Steel Co. v. Mitchell, 161 Ala. 278-286, 49 So. 851. The privilege, however, of allowing an entire recovery for an injury caused by structures of a permanent kind has, in numerous decisions here and elsewhere, been extended to either party when their continued maintenance is protected by the existence of a quasi public franchise in the holder, or other circumstances presenting a case where the private right must, to that extent, be subordinated to the public good. Rhodes v. Durham, 165 N.C. 679-680, 81 S.E. 938, a case of city sewage; Ridley v. Railroad, supra: Adams v. Railroad, supra; Watts...
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