Causby v. HIGH PENN OIL COMPANY , 244 N.C. 235 ( 1956 )

93 S.E.2d 79 (1956) 244 N.C. 235

T. L. CAUSBY, J. Y. Hocker, M. W. Kincald, Fred Ratiedge, and on Behalf of Other Residents of the Guilford Community, Similarly Situated,
v.
HIGH PENN OIL COMPANY.

No. 603.

Supreme Court of North Carolina.

June 6, 1956.

Wm. E. Comer, Greensboro, for plaintiffs, appellees.

Brooks, McLendon, Brim & Holderness, Greensboro, for defendant, appellant.

PARKER, Justice.

The appellant states in its brief: "This Court held in a prior case involving the same defendant that an oil re-refiner is a lawful enterprise and for that reason cannot be a nuisance per se. Morgan v. [High Penn] Oil Co., 238 N.C. [185] at p[age] 191 [77 S.E.2d. 682, at page 687]." In the same case in the next sentence in the opinion of the Court, after the sentence paraphrased by appellant in its brief, the Court used this language: "The High Penn Oil Company falls into error, however, when it takes the position that an oil refinery cannot become a nuisance per accidens or in fact unless it is constructed or operated in a negligent manner." [238 N.C. 185, 77 S.E.2d 690.]

The case referred to in appellant's brief is Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682, which was an action to recover temporary damages for a private nuisance and to abate such nuisance by injunction. The Court in the scholarly opinion by Ervin, J., said on page 191 of 238 N.C., on page 688 of 77 S.E.2d: "Most private nuisances per accidens or in fact are intentionally created or maintained, and are redressed by the courts without allegation or proof of negligence"; and later in the same opinion on page 194 of 238 N.C., on page 689 of 77 S.E.2d the Court said: "A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury." Further on in this opinion on page 195 of 238 N.C., on page 690 of 77 S.E.2d this Court said: "When the evidence is taken in the light most favorable to the plaintiffs, it also suffices to warrant the additional inferences that the High Penn Oil Company intends to operate the oil refinery in the future in the same manner as in the past; that if it is permitted to carry this intent into effect, the High Penn Oil Company will hereafter cast noxious gases and odors onto the nine acres of the plaintiffs with such recurring frequency and in such annoying density as to inflict irreparable injury upon the plaintiffs in the use and enjoyment of their home and their other adjacent properties; and that the issuance of an appropriate injunction is necessary to protect the plaintiffs against the threatened irreparable injury. This being true, the evidence is ample to establish the existence of an abatable private nuisance, entitling the plaintiffs to such mandatory or prohibitory injunctive relief as may be required to prevent the High Penn Oil Company from continuing the nuisance." All the facts in Morgan v. High Penn Oil Co. occurred before the explosion at the re-refinery plant referred to in the instant case.

The evidence before his Honor amply supports his finding of fact that the operation of the re-refinery plant by the defendant up to the time of the explosion there constituted the existence of an abatable private nuisance, entitling the plaintiffs to such injunctive relief as might be required to prevent the defendant from continuing the nuisance. However, the defendant contends that, since the explosion at the re-refinery plant, it is rebuilding it, so that when it is put in operation it "will not permit the escape of any obnoxious odors or fumes," and that his Honor was in error in basing his restraining order upon an anticipated nuisance without sufficient proof.

In deciding this question it is necessary for us to consider the relevant rules which govern the granting or refusing of an interlocutory injunction. Many of these rules, many of which are relevant here, are set forth in an illuminating opinion by Ervin, J., in Huskins v. Yancey Hospital, Inc., 238 N.C. 357, 78 S.E.2d 116, 119. In that case Ervin, J., said for the Court: "While equity does not permit the judge who hears the application to decide the cause on the merits, it does require him to exercise a sound discretion in determining whether an interlocutory injunction should be granted or refused. * * * The hearing judge considers and weighs the affidavits or other evidence of the opposing parties for the purpose of ascertaining whether the plaintiff has made out an apparent case for the issuance of an interlocutory injunction and whether the granting of an interlocutory injunction would work greater injury to the defendant than is reasonably necessary for the protection of the plaintiff. * * * The hearing judge necessarily refuses an interlocutory injunction if the plaintiff fails to make out an apparent case for the issuance of the writ. * * * In determining the propriety of issuing an interlocutory injunction, the hearing judge considers and weighs the relative conveniences and inconveniences which the parties will suffer by the granting or the refusing of the writ. [Citing authorities.] An injunction of this nature should be granted where the injury which the defendant would suffer from its issuance is slight as compared with the damage which the plaintiff would sustain from its refusal, if the plaintiff should finally prevail."

The courts are slow to interfere by injunction with the conduct of business enterprises, Wilcher v. Sharpe, 236 N.C. 308, 72 S.E.2d 662, 664, but a business enterprise cannot exercise its property rights to establish the existence of an abatable private nuisance, without entitling injured persons to injunctive relief, Morgan v. High Penn Oil Co., supra.

"The mere apprehension of a nuisance is insufficient to warrant equitable relief, and in order to restrain future acts with respect to the use of a proposed building, it is necessary to set forth facts which show with reasonable certainty that such result would likely follow." Wilcher v. Sharpe, supra. As said by Walker, J., in Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453, 457, 7 L.R.A., N.S., 321: "``When the interposition by injunction is sought to restrain that which it is apprehended will create a nuisance, the proof must show that the apprehension of material and irreparable injury is well grounded upon a state of facts from which it appears that the danger is real and immediate.'"

The findings of the judge in the instant case are that the operation of the re-refinery plant by the defendant before the explosion constituted the existence of a private nuisance, that the defendant is rebuilding the plant, and intends to continue its operation, and judging from past performances the court is of the opinion, and so holds, that the nuisance complained of in the past may continue, when operations are resumed, as the operators are the same, the ownership is the same and the business is the same, as before the explosion. If the defendant operates the re-refinery plant in the future, as the evidence shows it has in the past, it seems plain that such operation will result in irreparable injury to plaintiffs. The evidence before his Honor shows that the apprehension of material and irreparable injury is soundly based upon the fact that defendant before the explosion operated its re-refinery plant so as to constitute the existence of an abatable private nuisance, and that, after the plant is rebuilt and put in operation in the same business by the same defendant, there appears reasonable certainty that the former nuisance will be continued to plaintiffs' real and immediate danger.

His Honor did not restrain the rebuilding of the re-refinery plant, but merely en joined the defendant from operating it, when rebuilt, in such a manner "as to emit the foul, disagreeable and nauseating odors complained of in this cause." The complaint alleges these odors are actually injuring their health. If the re-refinery plant, when rebuilt, will not permit the escape of any obnoxious fumes or odors of the kind and nature as set forth in the complaint, which defendant alleges in its answer, it is not hurt by the temporary injunction. If it does, and if the plaintiffs should finally prevail, their damage in the interim will be great, if the temporary injunction is vacated.

The reasons for preventing a prospective nuisance are at least as cogent as those for abating a present one. In the latter instance the courts act more readily because they are sure of their ground. The evil is visible. However, the call for protection against an apprehended injury, reasonably certain to befall, is as imperative as that for relief from one now felt. Nor is the complainant required to wait until some harm has been experienced or to show with absolute certainty it will occur. One requirement would make the remedy largely useless, the other impracticable.

The plaintiffs alleged in their complaint, which was offered in evidence as an affidavit, that the noxious odors and fumes from this re-refinery plant when in operation before the explosion actually injured their health. Generally, when the proof tends to show with reasonable certainty that there is a well grounded apprehension of danger to health or life by reason of the threatened use of adjacent property, such user should be restrained until the final hearing. Cherry v. Williams, 147 N.C. 452, 61 S.E. 267, where many of our cases are analyzed. Equity does not require a man to stand idle, until his family has sickened or died.

The assignments of error as to his Honor's findings of fact are overruled, for they are supported by competent evidence. The defendant's assignments of error as to the failure of the court to find the facts as contended by defendant are overruled. A person who intentionally maintains a private nuisance is liable for resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury. Morgan v. High Penn Oil Co., supra.

The judge below restrained the defendant, but did not add the words, until the final hearing. The order will be modified to read that the defendant is restrained from operating the re-refinery plant involved in such manner as to emit the foul, disagreeable and nauseating odors complained of in this case until the final hearing. The order as thus modified is affirmed.

Modified and affirmed.