McKinney v. Deneen

58 S.E.2d 107 (1950) 231 N.C. 540

McKINNEY et ux.
v.
DENEEN et al.

No. 162.

Supreme Court of North Carolina.

March 8, 1950.

R. W. Wilson, Burnsville, for plaintiffs appellants.

W. E. Anglin, Burnsville, for defendant appellee Deneen.

Fouts & Watson, Burnsville, and J. H. Winston, Johnson City, Tenn., for defendant appellee Southern Mica Co., Inc.

BARNHILL, Justice.

Under the decisions of this Court, there is no misjoinder of parties and causes of action. Lineberger v. Gastonia, 196 N.C. 445, 146 S.E. 79; Stowe v. Gastonia, 231 N.C. 157, 56 S.E.2d 413.

Plaintiffs do not allege merely that defendants, in getting out and washing the products of mica mines, have allowed "waste, water and sediment to run off into the natural" course of South Toe River. They allege that defendants, in the operation of their plants, pumped "a stream of water through pipes, hose and nozzles and boring into the earth and cutting loose thousands of tons of earth and washing it down into the said stream" and have otherwise discharged into the stream earth, sediment and waste which have materially decreased the value of their property. They further allege that "the acts of the defendants in pumping the water far from the channel of the stream and high onto the hills, and using it to wash out deep cannons (sic) through the hills is not similar to the usage made of the waters of the stream by riparian owners who live along the stream * * *"

In short, the plaintiffs allege a direct invasion of and entry upon their land which amounts to a taking or appropriation of their property. They seek compensation therefor.

That a citizen may not be deprived of his property even for a public use, without compensation is fundamental. U. S. Const., Amend. XIV; N. C. Const., art. I, sec. 17, art. I, sec. 35; Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407; Wagner v. Town of Conover, 200 N.C. 82, 156 S.E. 167.

It is true that the government, in the exercise of its police power, may regulate and place restrictions upon the use of property in order to secure the general safety, public welfare, and good morals of the community, and any incidental loss occasioned thereby is not compensable. But a direct entry upon and appropriation of private property for a public use does not come within the rule.

Furthermore, the Act, G.S. § 74-31, upon which the defendants rely is in derogation of the common law and must be strictly construed. In re Pitchi's Estate N.C., 57 S.E.2d 649. While it authorizes persons engaged in the business of mining kaolin and mica to discharge the water used in washing the products, together with the incidental waste and sediment, into the natural courses and streams of the State, it does not purport to relieve such persons from liability for any damages which may directly result therefrom. It would seem to be nothing more than a modification of the prevailing stream pollution law in the interest of miners of kaolin and mica.

Therefore, a consideration of the allegations of the complaint in the light of the statute does not compel the conclusion that plaintiffs have failed to state a good cause of action.

We do not mean to hold at this time that defendants may not offer in evidence facts and circumstances which would sustain the constitutionality of the Act and invoke its application. We merely conclude that the questions defendants here seek to raise by demurrer are not presented in such manner as to defeat the plaintiffs' cause of action. The force and effect of the Act as applied to this particular case must rest upon the facts developed at the trial, and such questions must be decided, in the first instance, by the court below as they arise in the trial.

The judgment below is

Reversed.