Casado v. Melas Corp. , 69 N.C. App. 630 ( 1984 )

318 S.E.2d 247 (1984)

Pablo G. CASADO and wife, Carol Casado
v.
MELAS CORPORATION, Mellott Contractors, Inc., and Mellott Trucking and Supply Co., Inc.

No. 8315SC1003.

Court of Appeals of North Carolina.

July 17, 1984.

Winston, Blue & Rooks by J. William Blue, Jr., Chapel Hill, for plaintiffs-appellants.

No brief for defendant-appellee Mellott Trucking and Supply Co., Inc.

EAGLES, Judge.

We note at the outset that the trial court's conclusions that defendant was negligent and that its negligence proximately resulted in some damage to plaintiffs' property are not challenged in this appeal. Here, plaintiffs appealed from a judgment in their favor because it awarded only nominal damages. As this Court recently held, a party who prevails at trial may appeal from a judgment that is only partly in its favor or is less favorable than the party thinks it should be. New Hanover Co. v. Burton, 65 N.C.App. 544, 310 S.E.2d 72 (1983); G.S. 1-271. See also McCulloch v. R.R. Co., 146 N.C. 316, 59 S.E. 882 (1907).

Plaintiffs contend first that the trial court erred in concluding that they were required to establish what portion of the damage complained of was attributable to the acts of defendant as opposed to other causes. We agree with plaintiffs.

Where the damage complained of is the indivisible result of several causes, full recovery by a plaintiff does not depend on his ability to apportion the damages; plaintiff needs only to show that the negligence of one defendant was a proximate cause of some of the damage complained of. McEachern v. Miller, 268 N.C. 591, 151 S.E.2d 209 (1966); Hester v. Miller, 41 N.C.App. 509, 255 S.E.2d 318, disc. rev. denied, 298 N.C. 296, 259 S.E.2d 913 (1979). In order to hold defendant liable for the entire injury, it is not necessary that his negligence be the sole proximate cause of the injury, or the last act of negligence. Batts v. Faggart, 260 N.C. 641, 133 S.E.2d 504 (1963); Hester v. Miller, supra. See generally, Prosser, Law of Torts, Apportionment of Damages § 52 (4th ed. 1971); 9 N.C. Index 3d, Negligence § 10 (1977 and Supp.1983). Here, it was error for the trial court to require plaintiffs "to establish the degree to which the formation of the ``Delta' is attributable to the acts of the defendant...."

Plaintiffs next assign error to the trial court's ruling that the proper method for determining the amount of damage to plaintiffs' property was the diminution in its market value. Plaintiffs argue that, because the damage was not permanent, diminution in value was not the proper measure of damages. We agree.

The trial court's findings of fact indicate that the negligence of defendant was still operating at the time judgment was entered and that the resulting damage to plaintiff's property was continuing and was still accumulating. Specifically, the court found that "plaintiffs' property continues to be subject to siltation." Nevertheless, the court concluded that the damage was "a permanent condition" and that the correct measure of damages was the diminution in value of plaintiffs' property.

While the "Delta" created by the runoff may well be "a permanent condition," the fact that it is continuing to accumulate makes it an impermanent and continuing injury for the purpose of measuring damages. Phillips v. Chesson, 231 N.C. 566, 58 S.E.2d 343 (1950), is relevant here. It involved a suit between two private landowners where the defendant landowner had diverted the natural flow of surface water, causing it to flow onto plaintiff's property. The diverted water carried clay and mud which were deposited and accumulated on plaintiff's land. The periodic flooding also caused extensive damage to buildings on the property. In his complaint, plaintiff alleged damages of a recurring nature. The Supreme Court, finding that the evidence supported plaintiff's allegations, nevertheless ordered a new trial because the court erroneously instructed the jury to compute any damages awarded on the basis of diminution in value of plaintiff's property. We quote from Justice Seawell's opinion:

The impermanent nature of the condition from which the intermittent or recurrent damage arises is recognized in the constitution of the case, since the plaintiff has concomitantly with his prayer for damages invoked injunctive relief for its abatement. The cause of the recurring damage, then, is one which may be removed by the voluntary action of the defendant, or abated by court action, if that should be adjudged appropriate. Plaintiff's remedy in a proceeding of this sort, between private parties, is by successive suits brought from time to time against the author of the nuisance as long as the noxious condition is maintained, in which he may recover past damages down to the time of the trial... not including subjects of prior adjudication. In this way it has been said, ... 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.

In contrast, permanent damages, as the term is used in the law, are given in one award of entire damages on the theory that all damage flows from the original injury, recognized as permanent in character; and such award includes compensation for all damage, however intermittent, or recurring, past, present and prospective, naturally flowing from and proximately caused by the original injury.

....

The great weight of authority where the point has been squarely presented sine nubibus clearly rejects the diminution of market value as neither accurate, convenient nor just where, as here, temporary damages only will be allowed, where the cause of the injury is impermanent in the sense that it may be removed by the offender voluntarily or abated by equitable proceedings which the plaintiff has here invoked.

Id. at 569-71, 58 S.E.2d at 346-48 (citations omitted). See also Sutherland v. Hickory Nut Co., 23 N.C.App. 434, 209 S.E.2d 301 (1974) (water and sediment damage to plaintiff's property resulting from defendant's upstream land disturbance ruled impermanent as a matter of law by trial court; damages awarded accordingly. Affirmed by Court of Appeals). See generally 25 C.J.S., Damages § 84 (1966); 12 N.C. Index 3d, Trespass § 9 (1978).

Here, as in Phillips, supra, plaintiffs have alleged damages of a continuing and recurring nature and seek injunctive relief as well as damages. While the general rule for assessing damage to real property is diminution in market value, that measure is not appropriate where, as here, the damage complained of is "impermanent." In a case involving damages of an "impermanent" nature, "various other rules are applied, such as ... reasonable costs of replacement or repair." Phillips v. Chesson, supra, 231 N.C. at 571, 58 S.E.2d at 348. Clearly, the ruling by the trial court that the proper measure of damages was diminution in value was error.

Plaintiffs' third and last contention on appeal challenges the trial court's ruling that plaintiffs presented no evidence of diminution in the value of their property. Since we have determined that diminution in the value of the property is not the proper measure of damages here, we need not address this contention.

With the exception of the portions relating to the measure of damages, the judgment is affirmed. The portions relating to the measure of damages are vacated, and the cause is remanded for further proceedings on the issue of damages.

Affirmed in part, vacated in part, and remanded.

ARNOLD and WHICHARD, JJ., concur.