Citation Numbers: 46 S.E.2d 559, 228 N.C. 553
Judges: DENNY, J.
Filed Date: 3/3/1948
Status: Precedential
Modified Date: 1/13/2023
Civil action to restrain the Town of Burnsville from emptying sewage into Pine Swamp Branch.
By consent of counsel this cause was heard by his Honor upon affidavits and without the services of a jury.
The defendant demurred ore tenus on the ground that the complaint does not state facts sufficient to constitute a cause of action in that (1) the plaintiffs allege no ownership of property abutting upon or contiguous to Pine Swamp Branch; (2) the plaintiffs allege no damages, irreparable or otherwise; and (3) the plaintiffs fail to allege they have no adequate remedy at law.
The trial judge overruled the demurrer, found as a fact that the Town of Burnsville is and has been for a number of years, disposing of raw sewage in Pine Swamp Branch referred to in the complaint, and entered judgment for the plaintiffs, restraining the defendant from emptying untreated sewage in Pine Swamp Branch on and after 1 November, 1950. The judgment provides, however, that unless the defendant shows to the satisfaction of the court by 1 November, 1949, that it has set about "making provision for the necessary repairs, remedies and facilities for such treatment of the sewage," the effective date of the injunction may be accelerated.
Defendant appeals, assigning error. *Page 554 The plaintiffs allege they are citizens and residents of Burnsville Township, Yancey County, North Carolina. However, they do not allege that they own land abutting upon or contiguous to Pine Swamp Branch. Moreover, they do not allege that by reason of the emptying of untreated sewage into Pine Swamp Branch by the defendant, they are suffering some peculiar or special injury to their personal and property rights not suffered by the public generally. Instead of alleging special damages to their respective properties as a result of the conduct of the Town of Burnsville in emptying untreated sewage in Pine Swamp Branch, they allege "that from a practical viewpoint the health of the citizens of Burnsville is continually endangered on account of the unlawful practice of said defendant, the Town of Burnsville, in dumping such refuse into said slowly running stream."
It seems the plaintiffs instituted and tried this action below upon the theory that the equitable relief sought by them may be obtained by alleging and proving that the defendant, Town of Burnsville, is and has been disposing of untreated sewage in Pine Swamp Branch. The appellees citeBoard of Health v. Commissioners,
The above case was bottomed upon a statute which prohibited any person, firm, corporation or municipality from discharging untreated sewage into any drain, brook, creek or river from which a public drinking-water supply is taken. A violation of this statute, G.S., 130-117, is sufficient to invoke the equitable powers of the court and an injunction may be issued against a defendant for emptying sewage into such a stream without proof of any injurious effect upon plaintiff's water supply. Durham v. Eno CottonMills,
In the instant case it is not contended that a public drinking-water supply is taken from Pine Swamp Branch. Therefore, the above statute nor the cases bottomed thereon are controlling on this appeal.
Ordinarily, private individuals who seek to restrain a municipality from emptying sewage in a stream from which a public drinking-water supply is not taken, must allege, in order to survive a demurrer, that they own land along or adjacent to said stream and that the acts complained of are such as to constitute a nuisance and as a result thereof the plaintiffs have and will continue to suffer irreparable damages unless granted the relief sought. Vickers v. Durham,
The demurrer ore tenus should have been sustained, and the defendant's exception to the failure of the court to so rule will be upheld. Therefore, the judgment of the court below is
Reversed.
Metz v. . Asheville , 150 N.C. 748 ( 1909 )
Cherry v. . Williams , 147 N.C. 452 ( 1908 )
Vickers v. . Durham , 132 N.C. 880 ( 1903 )
Durham v. . Cotton Mills , 144 N.C. 705 ( 1907 )
Board of Health v. . Commissioners , 173 N.C. 250 ( 1917 )
Smithfield v. . Raleigh , 207 N.C. 597 ( 1935 )
Shelby v. . Power Co. , 155 N.C. 196 ( 1911 )
Gray v. . High Point , 203 N.C. 756 ( 1932 )
Little v. . Lenior , 151 N.C. 415 ( 1909 )