McManus v. . R. R.

There was allegation, with evidence, on the part of plaintiff, tending to show that plaintiff was the owner of a dwelling house and tenement property adjacent to the Old Rock Quarry, in the city of Charlotte, and that —

"3. In or about the year 1890 the said defendant, or its grantors, leased and let the said tract or lot of land in the city of Charlotte for the purpose of opening a rock quarry, and the said defendant has knowingly, carelessly and unlawfully permitted, allowed and tolerated its lessee, the city of Charlotte, to open up a rock quarry on said tract or lot of land, and to maintain a nuisance upon said premises, and is now permitting, allowing and tolerating a nuisance to exist and to be maintained on said premises, as hereinafter set out in this complaint.

"4. That the city of Charlotte, about the year 1890, commenced to open up a rock quarry on defendant's said tract or lot of land, and continued to so use said premises as a rock quarry until some time during the year 1906, when it ceased to use said premises as a rock quarry.

"5. That while operating the rock quarry on said premises the (657) city of Charlotte used violent explosives, blasting the rock, throwing large pieces of rock upon the house of this plaintiff, which blasting of rock damaged plaintiff's dwelling by causing the plastering to fall from the walls, by making great holes in the roof, and by damaging the outside walls; the said excavation reaching within a few feet of the plaintiff's premises on South College Street; and at the time of ceasing to use said premises as a rock quarry a large and dangerous excavation was left open, said excavation being from forty to fifty feet deep, and about one hundred yards wide and about one hundred and twenty-five yards long, the said excavation being left exposed and unprotected.

"6. That since the city of Charlotte abandoned the use of the rock quarry the defendant has permitted water to collect and remain in said excavation from five to thirty feet in depth, much of the water being emptied from different parts of the city; which water in said excavation becomes stagnant, emitting an unwholesome odor, to the discomfort and annoyance of this plaintiff and his tenants.

"7. That after the city abandoned the use of said rock quarry the defendant permitted, allowed and tolerated the city to haul and throw into said excavation street cleanings, rotten eggs, decayed fish, dead chickens, dead cats, and various other filth and dead carcasses from all portions of the city, which, together with the stagnant water, sent forth and emitted nauseous and loathsome odors, making the plaintiff's property almost uninhabitable, causing sickness, making the plaintiff's tenants to abandon the property and greatly reducing the rental value of all the plaintiff's property.

"8. That besides a good dwelling house, the plaintiff has on said lot a small dwelling house and several other buildings for business purposes, and on account of the nuisance allowed and permitted by the defendant on said adjoining lot, as above set out, this plaintiff has been unable to rent or get any substantial income from some of these buildings.

"9. That the defendant is guilty of a wrongful and unlawful act in maintaining, permitting and allowing said nuisance, above (658) set out, to exist on its lot or tract of land, on account of which this plaintiff has suffered and continues to suffer special and peculiar damages, being an adjoining lot owner, and not only has he been damaged in his health, but he has been and is greatly damaged in his property rights and interests, in that the market value of his said property and the income therefrom has been greatly decreased and diminished on account of the maintenance of said nuisance; all to his great damage in the sum of two thousand dollars ($2,000)."

There was general denial on the part of defendant of the essential portions of the complaint, and evidence tending to support same. On issues submitted the jury rendered the following verdict:

1. "Did the defendant maintain or permit to be maintained on the premises a public nuisance, as alleged in the complaint?" Answer: "Yes."

2. "What special damages, if any, has the plaintiff suffered on account of said nuisance?" Answer: "Nothing."

On the verdict, both plaintiff and defendant having moved for judgment, the court signed judgment for plaintiff, ordering an abatement of the nuisance within ten months, and defendant, the Southern Railway, excepted and appealed. It is very generally held, uniformly so far as we have examined, both here and elsewhere, that in order for a private citizen to sustain an action by reason of a public nuisance, he must establish some damage or injury special and peculiar to himself and differing in kind and degree from that suffered in common with the general public. Pedrick v. R. R., 143 N.C. 485. This limitation on a right of action, so expressed in many well-considered decisions, must be understood to apply in strictness where the wrong complained of consists in the unlawful interference with some public right, a right held by a plaintiff in common with all members of a community, and does not obtain when a public nuisance involves also the invasion (659) of the private right of the litigant. In these cases, a person who is injured in some substantial right of person or property is not deprived of his action because the wrong done is so extensive and of such a character and placing that it amounts to an indictable offense. This apparent exception may perhaps be referred to the more general rule at first stated, by considering that any and all persons who come within the sphere and influence of a nuisance to an extent that subjects them to an injury of the kind stated suffer the special or peculiar damage required to the maintenance of an action by the individual. Mr. Wood, in his work on Nuisances, so treats the question (Wood on Nuisances (2 Ed.), sec. 16), referring cases coming within the exception to the head of mixed nuisances, "public, in that they produce injury to many persons, or all the public, and private, because at the same time they produce a special and particular injury to private rights, which subjects the wrongdoer to indictment by the public and also to damages at the suit of the person injured."

The distinction to which we were adverting is very well brought out inWesson v. Washburn, 95 Mass. 95, in which it was held — "Private Action for Nuisance General in its Operation. — Action will he against owners of a mill for injuring plaintiff's dwelling by shaking and jarring the same, and surrounding it with noisome odors and vapors, although all the other residents of that locality have suffered like injury. The rule that where the right invaded or impaired is a common and public one which every subject of the State may use and enjoy, an individual action does not he, does not apply to cases where the alleged wrong is done to private property, or the health of individuals is injured or their comfort destroyed by the carrying on of offensive trades, or the creation of noisome smells or disturbing noises, no matter how extensive or numerous may be the instances of discomfort or injury to persons or property thereby occasioned."

And in the opinion, Chief Justice Bigelow, speaking to this question, said: "Where a public right or privilege common to every person in the community is interrupted or interfered with, a nuisance is created by the very act of interruption or interference, which (660) subjects the party through whose agency it is done to a public prosecution, although no actual injury or damage may be thereby caused to any one. If, for example, a public way is obstructed, the existence of the obstruction is a nuisance, and punishable as such, even if no inconvenience or delay to public travel actually takes place. It would not be necessary, in a prosecution for such a nuisance, to show that any one had been delayed or turned aside. The offense would be complete, although during the continuance of the obstruction no one had had occasion to pass over the way. The wrong consists in doing an act inconsistent with and in derogation of the public or common right. It is in cases of this character that the law does not permit private actions to be maintained on proof merely of a disturbance in the enjoyment of the common right, unless special damage is also shown distinct, not only in degree, but in kind, from that which is done to the whole public by the nuisance.

"But there is another class of cases, in which the essence of the wrong consists in an invasion of private right, and in which the public offense is committed, not merely by doing an act which causes injury, annoyance and discomfort to one or several persons who may come within the sphere of its operation or influence, but by doing it in such place and in such manner that the aggregation of private injuries becomes so great and extensive as to constitute a public annoyance and inconvenience and a wrong against the community, which may be properly the subject of a public prosecution. But it has never been held, so far as we know, that in cases of this character the injury to private property, or to the health and comfort of individuals, becomes merged in the public wrong so as to take away from the persons injured the right which they would otherwise have to maintain actions to recover damages which each may have sustained in his person or estate from the wrongful act. . . . The real distinction would seem to be this: that when the wrongful act is of itself a disturbance or obstruction only to the exercise of a common and public right, the sole remedy is by public prosecution, unless special damage is caused to individuals. (661) In such case, the act of itself does no wrong to individuals distinct from that done to the whole community. But when the alleged nuisance would constitute a private wrong, by injuring property or health, or creating personal inconvenience and annoyance, for which an action might be maintained in favor of a person injured, it is none the less actionable because the wrong is committed in a manner and under circumstances which would render the guilty party liable to indictment for a common nuisance." See Manufacturing Co. v. R. R.,117 N.C. 579.

The nuisance established by the verdict on the first issue is of the kind considered in the opinion just quoted, and would give a right of action to any and all persons who come within its influence and effect, to the extent of suffering injury to their private rights either of person or property; but plaintiff is not entitled to the judgment given him, by reason of the verdict on the second issue, to the effect that no special damage has been suffered by plaintiff on account of the nuisance, and for the lack of any finding or fact established in the record showing that plaintiff has suffered either injury or damage of any kind done or threatened. There is evidence on the part of plaintiff tending to show both, but neither has been authoritatively established, and the Court is not at liberty to infer or act upon it till this is done.

Where a nuisance has been established, working harm to the rights of an individual citizen, the law of our State is searching and adequate to afford an injured person ample redress, both by remedial and preventive remedies, as will be readily seen by reference to numerous decisions of the Court on the subject. Revisal, sec. 825. Cherry v. Williams,147 N.C. 452; Pedrick v. R. R., supra; Reyburn v. Sawyer, 135 N.C. 328;Manufacturing Co. v. R. R., supra; Raleigh v. Hunter, 16 N.C. 12;Bell v. Blount, 11 N.C. 384; R. R. v. Baptist Church, 108 U.S. 318. But in wrongs of the kind presented here, not involving any physical interference with the personal or proprietary rights of another, a recovery can not be had, even for nominal damages, by simply showing that a nuisance has been created or maintained; but plaintiff must go further and show that it has injuriously affected him in some (662) substantial right or there is imminent danger that it will do so. Where the essential or issuable facts are referred to a jury for decision, and there are no additional facts admitted in the pleadings, or otherwise, and none of the kind of which a court takes judicial notice, the judgment must follow as a conclusion of law upon the verdict. In the case before us the defendant, in its pleadings, has denied that plaintiff is the owner of any property adjacent to this alleged nuisance, or that any property of his is injuriously affected thereby; and, while a perusal of the evidence discloses that no debate was made on that point in the trial below, the Court, as stated, is not at liberty, in a case of this kind, to act upon the evidence, but can only award or refuse relief upon facts established in some authorized way; and, so far as appears, there are no facts so established which show that plaintiff's property comes within the influence and operation of the alleged nuisance, and no damages, special or otherwise, have been shown which in any way affect him. Nor do we think that defendant is entitled to judgment on the verdict as rendered, for the reason that the issues are not fully responsive to the pleadings. As we have heretofore endeavored to show, the nuisance alleged in the complaint, and established by the verdict on the first issue, is of a kind and character which involves the invasion of the rights of all owners or lawful occupants of adjacent property whose individual rights are injuriously affected, and a right of action on any one of them is in no way impaired because the injury done him is the same or similar in kind to that of all others in like circumstances, however numerous. Such owner is not required to establish the existence of damage or injury special and peculiar in reference to the injury generally suffered by other adjacent owners who are similarly situated. As to them, therefore, or any one of them, the second issue imposes a greater burden than is required to establish an actionable wrong against the defendant; and in view of the kind of nuisance alleged and established, we are of opinion that the verdict is not sufficiently full and responsive to entitle either the plaintiff or defendant to judgment, in that it does not determine all the issuable facts embraced in the pleadings, and the cause should be referred to another jury. Bryant v.Insurance Co., 147 N.C. 181.

For the error indicated, the judgment in favor of the plaintiff (663) will be set aside and the cause remanded, that a trial may be had on issues determinative of the rights of the parties involved in the action.

New trial.