Hines v. . Rocky Mount , 162 N.C. 409 ( 1913 )

The charter of the city of Rocky Mount, Private Laws 1907, ch. 209, sec. 21, provides, in general terms, that the board of aldermen shall have power to make proper regulations for the conservation of the public health, and may create and appoint a board of health to exercise and carry out such powers under the supervision and control of the first mentioned board. The acts complained of were chiefly in the exercise or attempted exercise of the powers there conferred, and should be considered governmental in character. Insurance Co. v. Keeseville, 148 N.Y. 46;Love v. Atlanta, 95 Ga. 129; 1 Abbott on Municipal Corporations, p. 304, sec. 147. This being the correct position, our decisions hold the general rule to be, and they are in accord with well considered authority elsewhere, that "unless a right of action is given by statute, (412) municipal corporations may not be held civilly liable to individuals for failure to perform or neglect in performing duties governmental in their nature, including generally all duties existent or imposed upon them by law for the public benefit." Harrington v. Greenville,159 N.C. 634, citing and referring, among other cases, to Hullv. Roxboro, 142 N.C. 453; Peterson v. Wilmington, 130 N.C. 76;McIlhenny v. Wilmington, 127 N.C. 146; Moffitt v.Asheville, 103 N.C. 237; see, also, Hill v. Boston,122 Mass. 344; Commonwealth v. Kidder, 107 Mass. 88; Smith's Modern Law on Municipal Corporations, sec. 780.

This general principle is subject to the limitation that neither a municipal corporation nor other governmental agency is allowed to establish and maintain a nuisance, causing appreciable damage to the property of a private owner, without being liable for it. To the extent of the damage done to such property, it is regarded and dealt with as a taking or appropriation of the property, and it is well understood that such an interference with the rights of ownership may not be made or authorized except on compensation first made pursuant to the law of the land. Littlev. Lenoir, 151 N.C. 415; Nevins v. Peoria, 41 Ill. 502; Winchell v.Waukesha, 110 Wis. 101; Eaton v. R. R., 51 N. H., 504; Bohan v. PortJervis Co., 122 N.Y. 18; Mining Co. v. Joplin, 124 Mo., 129; FertilizerCo. v. Malone, 73 Md. 268; Wharf Co. v. Portland, 67 Me. 46; Village of Dwight v. Hayes, 150 Ill. 273;Langley v. Augusta, 118 Ga. 590; 3 Abbott Municipal Corporations, sec. 961; 1 Lewis Eminent Domain (3 Ed.), sec. 65.

In affording redress for wrongs of this character, injuries caused by a nuisance wrongfully created in the exercise of governmental functions, our decisions hold as the correct deduction from the above principle that the damages are confined to the diminished value of the property affected, and that sickness attributable to such nuisance may not be properly considered as a direct element of damage (Metz v.Asheville, 150 N.C. 748; Williams v. Greenville, 130 N.C. 93); a position which finds support in decisions of other courts of (413) recognized authority. Hughes v. Auburn, 161 N.Y. 96; Folk v. Milwaukee, 108 Wis. 359. The evidence, or some of it, may be relevant on the question of the diminished value of the property, and might, in given instances, present a case for injunctive relief, but may not be made the basis for a direct estimate and award of uncertain and unrestrained damages. Speaking to some of the underlying reasons for the position, O'Brien, J., delivering the opinion in theHughes case, among other things, said: "If an individual, injured by disease produced by the acts or neglect of a city, such as are stated in the complaint, can recover damages at all, it must be upon some principle of the common law; and had it been suggested half a century ago that such a principle existed, the assertion would have been received with surprise. In the form in which this case comes here, there is ample room to urge in argument elements of individual hardship well calculated to disturb the mind and divert it from the questions of law that underlie the action. On the principle that there can be no wrong without a remedy, courts are sometimes astute to discover grounds for relief in cases of this character, that, when applied as general principles to like cases, are found to be exceedingly inconvenient, if not untenable, and, hence, very frequently have to be distinguished, modified, or entirely abandoned. The principle upon which the judgment in this case rests is that an individual who has suffered from disease, caused by the neglect of a city to observe sanitary laws with reference to its sewer system, may recover damages from the city. This principle, if sanctioned and applied generally to all cases coming within its scope, cannot fail to produce evils much more intolerable than any that can possibly arise from such acts of omission or commission as the plaintiff states as the basis of this action. It must necessarily become the prolific parent of a vast mass of litigation which the municipality can respond to only by taxation, imposed alike upon the innocent and the guilty." And further: "In the construction and maintenance of a sewer or drainage system, a municipal corporation exercises a part of the governmental powers of the State for the customary local convenience and benefit of all the people, and in the exercise of these discretionary functions the municipality (414) cannot be required to respond in damages to individuals for injury to health, resulting either from omissions to act or the mode of exercising the power conferred on it for public purposes to be used at discretion for the public good. I have attempted to state some of the reasons that underlie this principle and their application to this case, with the evil results that must follow any departure from it."

Applying the doctrine as it obtains with us, we must hold that there was error in allowing the jury to consider the testimony as to sickness of various members of the plaintiff's family as a direct element in estimating the damages. The motion to nonsuit was properly overruled, because there were facts in evidence tending to show the existence of an actionable nuisance, causing damage to the proprietary rights of the plaintiff and entitling him in any event to a recovery for nominal damages. It does not appear what was the nature of plaintiff's tenure, whether as owner or otherwise, but, whether as owner or renter, he is entitled to recover for wrongful injury, causing damage to his proprietary rights. Smith v.Sedalia, 182 Mo., 1; Grantham v. Gibson, 41 Wn. 125.

Downs v. High Point, 115 N.C. 182, chiefly concerned the framing and sufficiency of the issues, and the mind of the Court was not directly addressed to the question presented here. To the extent, however, that theDowns case sanctions the principle that damages for specific cases of sickness can be recovered at the suit of an individual citizen by reason of an injury occurring from the exercise of governmental functions, the case has been disapproved both in Metz v. Asheville, supra, and Williams v.Greenville, supra, and is no longer authoritative on that position.

Durham v. Cotton Mills, 141 N.C. 615, and Vicker v. Durham,132 N.C. 880, are addressed to restraining the discharge of sewage by reason of apprehended injury, and the amount of damages for injuries committed and the proper rules which should prevail on such an issue were not directly presented or determined.

For the error indicated, defendant is entitled to a

New trial.