Wiseman v. Tomrich Const. Co.

Citation250 N.C. 521,109 S.E.2d 248
Decision Date12 June 1959
Docket NumberNo. 673,673
CourtUnited States State Supreme Court of North Carolina
PartiesT. T. WISEMAN and wife, Willie M. Wiseman, v. TOMRICH CONSTRUCTION COMPANY.

Bryant, Lipton, Strayhorn & Bryant, Durham, for plaintiffs, appellees.

Spears, Spears & Powe, Durham, for defendant, appellant.

BOBBITT, Justice.

Defendant's assignments of error are directed (1) to the admission, over its objection, of testimony relating to the fair market value of plaintiffs' land immediately before and immediately after the installation of the 54-inch pipe; (2) to the submission, over its objection, of said second issue; and (3) to the court's refusal to submit in lieu of said second issue an issue tendered by it, to wit: 'If so, in what amount have the plaintiffs been damaged between the time of completion of construction of the storm drain in Lorain Avenue and the time of the acceptance of Lorain Avenue for maintenance and use as a public street by the City of Durham?'

'It is well settled that an action at law for damages will lie against one who wrongfully diverts or collects and discharges surface water on adjoining lands * * *' 56 Am.Jur., Waters § 85; 93 C.J.S. Waters § 127; Phillips v. Chesson, 231 N.C. 566, 58 S.E.2d 343; Jackson v. Kearns, 185 N.C. 417, 117 S.E. 345.

If, upon the facts in evidence, plaintiffs were entitled to recover permanent damages, the said testimony was relevant and properly admitted. Clinard v. Town of Kernersville, 215 N.C. 745, 752, 3 S.E.2d 267; Langley v. Staley Hosiery Mills, 194 N.C. 644, 140 S.E. 440; Brown v. Virginia-Carolina Chemical Co., 162 N.C. 83, 77 S.E. 1102, 45 L.R.A.,N.S., 773.

The determinative question is whether defendant, a private corporation, is legally liable to plaintiffs for permanent damages. Defendant says 'No,' contending its liability is limited to damages sustained by plaintiffs during the period between the completion by defendant of its construction of the 54-inch storm drain in Lorain Avenue and the acceptance of Lorain Avenue for maintenance and use as a public street by the City of Durham.

No decision, in this jurisdiction or elsewhere, cited or disclosed by our research, involves a closely analogous factual situation. For analysis of decisions obliquely relevant, see Case Comment by Charles P. Rouse, 'Damages--Nuisance--Single or Successive Recoveries for Permanent and Continuing Nuisances and Trespasses,' 7 N.C.L.R. 464, and 'Distinction between Completed and Continuing Invasions of the Landowner's Interest--the 'Permanent Nuisance' Doctrine,' McCormick on Damages, § 127.

Our decisions sanction the recovery of permanent damages by a landowner as a matter of right when the defendant, a municipal or other corporation having the power of eminent domain, could acquire by condemnation the right to commit the alleged continuing nuisance or trespass. In such case, permanent damages will be assessed upon demand of either party; and, when such demand is made, the action becomes in effect a condemnation proceeding. Clinard v. Town of Kernersville, supra, and cases cited. When the defendant's right to continue the alleged nuisance or trespass is protected by its power of eminent domain, the remedy of abatement is not available to the landowner. Rhodes v. City of Durham, 165 N.C. 679, 81 S.E. 938, and cases cited.

On the other hand, this Court has held that a landowner may not as a matter of right recover permanent damages from a private corporation or individual for the maintenance of a continuing nuisance or trespass. His remedy is to recover in separate and successive actions for damages sustained to the time of the trial. Phillips v. Chesson, supra, and cases cited. However, the parties may consent that an issue as to permanent damages be submitted; and in such case the defendant, upon payment of permanent damages so assessed, acquires a permanent right to continue such nuisance or trespass as in condemnation. Aydlett v. Carolina By-Products Co., 215 N.C. 700, 2 S.E.2d 881; Clinard v. Town of Kernersville, supra.

With reference to actions against private corporations or individuals, our decisions suggest two reasons for the stated rule: (1) The defendant may voluntarily abate the nuisance, or the nuisance or trespass may be abated or restrained by court action. (2) '* * * the defendant's willingness to abate or remove the cause of damage may be stimulated when repeatedly mulcted in damages by reason of its continued maintenance,' Phillips v. Chesson, supra [231 N.C. 566, 58 S.E.2d 347], and cases cited; Ridley v. Seaboard & R. R. Co., 118 N.C. 996, 24 S.E. 730, 32 L.R.A. 708.

The factual situations considered by this Court in actions between private parties where the landowner's remedy in respect of damages was so restricted, may be classified as follows: (1) Actions between adjoining landowners, absent such public interest as may be involved in the continued operation of a manufacturing or similar plant, e. g., Phillips v. Chesson, supra, and Winchester v. Byers, 196 N.C. 383, 145 S.E. 774. Whether, in the cited cases, the plaintiff was entitled to injunctive relief was not decided. Compare Wharton v. Empire Manufacturing Co., 196 N.C. 719, 146 S.E. 867, where the nuisance was abated prior to trial. (2) Actions based on the defendant's operation of a manufacturing or similar plant in such manner as to pollute the air by the discharge of noxious and offensive fumes and gases, Webb v. Virginia-Carolina Chemical Co., 170 N.C. 662, 87 S.E. 633, L.R.A.1916E, 971; Morrow v. Florence Mills, 181 N.C. 423, 107 S.E. 445; Brown v. Virginia-Carolina Chemical Co., supra; Id., 165 N.C. 421, 81 S.E. 463; or in such manner as to contaminate a stream by discharging waste materials therein, Clinard v. Town of Kernersville, supra; Langley v. Staley Hosiery Mills, supra; Webb v. Virginia-Carolina Chemical Co., supra.

Whether the remedy of abatement was available to plaintiffs prior to defendant's said development of Glendale Heights Extension need not be considered. Suffice to say, after defendant had completed such development, and had constructed houses and sold lots within the subdivision, and had dedicated the streets to public use, and the streets so dedicated had been accepted as public streets by the City of Durham, the rights of individual homeowners and of the public had intervened to such extent that the remedy of abatement was not available to plaintiffs.

These distinctive features of cases of the second class should be noted: Whether the remedy of abatement is available to plaintiff depends upon all circumstances relating to the operation of such plant. Causby v. High Penn. Oil Co., 244 N.C. 235, 93 S.E.2d 79; Webb v. Virginia-Carolina Chemical Co., supra; Duffy v. E. H. & J. A. Meadows Co., 131 N.C. 31, 42 S.E. 460. Too, the recurring or intermittent damages flow from the recurring or intermittent operation by defendant of its plant. The underlying idea is that such damages result from successive wrongs for which separate recoveries may be had rather than from a single irremediable wrongful act.

It is stated in 21 A. & E. Enc., 'Nuisances,' pp. 732-733, that the entire damages, both past and prospective, are...

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7 cases
  • Rudd v. Electrolux Corp.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • November 6, 1997
    ...trespass or nuisance.11 In such situation, the remedy of abatement is not available to the landowner. Wiseman v. Tomrich Const. Co., 250 N.C. 521, 109 S.E.2d 248 (1959). When eminent domain is not involved, the landowner may not normally recover permanent damages as a matter of right from a......
  • NEUSE RIVER FOUNDATION v. Smithfield Foods
    • United States
    • Court of Appeal of North Carolina (US)
    • December 31, 2002
    ...by its power of eminent domain, [so that] the remedy of abatement is not available to the landowner." Wiseman v. Tomrich Construction Co., 250 N.C. 521, 524, 109 S.E.2d 248, 251 (1959). There is no allegation that eminent domain is an issue here. Plaintiffs' general prayer for "[a]ny other ......
  • Soho Wilmington LLC v. Barnhill Contracting Co.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • January 10, 2019
    ...risk of an irreparable injury exists, and that the balance of equities justifies an injunction."); cf. Wiseman v. Tomrich Constr. Co., 250 N.C. 521, 524, 109 S.E.2d 248, 251 (1959); Morgan v. High Penn Oil Co., 238 N.C. 185, 194-95, 77 S.E.2d 682, 690 (1953); Broadbent v. Allison, 176 N.C. ......
  • Evans v. Lochmere Recreation Club, Inc.
    • United States
    • Court of Appeal of North Carolina (US)
    • March 21, 2006
    ...damages so assessed, acquires a permanent right to continue such nuisance or trespass as in condemnation. Wiseman v. Tomrich Constr. Co., 250 N.C. 521, 524, 109 S.E.2d 248, 251 (1959) (internal citations omitted). The verdict and award in the 1994 lawsuit does not indicate that an issue as ......
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