Hall v. DE WELD MICA CORPORATION

93 S.E.2d 56 (1956) 244 N.C. 182

Eugene HALL and wife, Nellie Hall,
v.
DE WELD MICA CORPORATION.

No. 306.

Supreme Court of North Carolina.

May 23, 1956.

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

Fouts & Watson, G. D. Bailey and W. E. Anglin, Burnsville, for defendant, appellant.

PARKER, Justice.

The defendant demurs on the ground of a misjoinder of parties and causes. When a demurrer on that ground is overruled, Rule 4(a) Rules of Practice in the Supreme Court, 243 N.C. iii does not apply.

The defendant contends that there is a misjoinder of parties and causes, because the plaintiffs seek to recover damages and pray for a permanent injunction for: "(1) trespas on their property; (2) labor in keeping things clean; (3) exposure to silicosis; and (4) fear and mental anguish for threat to their health and their children." The defendant further states in its brief: "As to their labor, their exposure to silicosis and their fear and mental anguish, each plaintiff has separate interests and separate damages, and the actions, therefore, are improperly united in this one action. G.S. § 1-123; G.S. § 1-127." The above is the complete argument and citation of authority in its brief.

The complaint alleges a direct invasion of plaintiff's property rights by vast clouds of dust charged with, and partly made up of, minute and invisible particles of silicon dioxide, which produces silicosis, settling on and covering their property, both inside and outside their home, which injurious acts are the immediate result of the operation of a mica mining and separating plant 200 yards from their home by the defendant. This is a trespass, and gives rise to a cause of action. McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Gwaltney v. Scottish Carolina Timber & Land Co., 115 N.C. 579, 20 S.E. 465; Newsom v. Anderson, 24 N.C. 42, 37 Am.Dec. 406; 87 C.J.S., Trespass, § 13, pp. 966-967.

In Kosich v. Poultrymen's Service Corp., 136 N.J.Eq. 571, 43 A.2d 15, 19, the Court said, quoting from Hennessy v. Carmony, 50 N.J.Eq. 616, 25 A. 374: My neighbor "``has no right * * * to throw sand, earth, or water upon my land in ever so small a quantity. To do so is an invasion of property, and a trespass, and to continue to do so constitutes a nuisance.'"

The sole allegation of ownership of the property by the plaintiffs is in paragraph two of their complaint, which reads: "That the plaintiffs own and have their home in South Toe Township in this State and County, where they have a four-room house and where they live and where they have four children, ages two to eleven years."

This Court said in Holloway v. Green, 167 N.C. 91, 83 S.E. 243, 245: "It is also a well-recognized principle that in a conveyance to husband and wife they take by entireties, with the right of survivorship (Bruce v. Nicholson, 109 N.C. 202, 13 N.E. 790), but that a conveyance may be made to them as tenants in common, when there is no survivorship (Eason v. Eason, 159 N.C. 539, 75 S.E. 797). See also: Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472.

It does not appear from the complaint as to whether the plaintiffs own their home as joint tenants, tenants in common or tenants by the entirety, but it does clearly appear that both are in the actual possession of their home, that both have an interest in it, and both want the relief demanded in the complaint.

G.S. § 1-68—Who May Be Plaintiffs—reads: "All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, either jointly, severally, or in the alternative * * *." The object of this statute is to permit all persons, who come within its terms, to unite as parties plaintiff, so that a single judgment may be rendered completely determining the controversy for the protection of all concerned.

In Pake v. Morris, 230 N.C. 424, 53 S.E.2d 300, the plaintiffs were husband and wife, who were the owners and in possession of the tract of land described in the complaint. They brought an action to enjoin an alleged threatened nuisance in the operation of a fish factory in close proximity to their home, which allegedly rendered their home practically uninhabitable and greatly impaired their comfort and health. A verdict and judgment in defendant's favor was affirmed. There was no contention that there was a misjoinder of parties and causes.

In Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682, the plaintiffs were husband and wife, who were seized in fee simple as tenants by the entireties of nine acres of land. They brought an action to recover temporary damages for a private nuisance and to abate such nuisance by injunction upon the alleged ground of damage to their property rights. In the opinion the Court said: "* * * the evidence is ample to establish the existence of an actionable private nuisance, entitling the plaintiffs to recover temporary damages from the High Penn Oil Company." Emphasis added. Further on in the opinion it is said: "* * * 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." Emphasis added. There was no contention of a misjoinder of parties and causes. See West v. Aberdeen & R. F. R. Co., 140 N.C. 620, 53 S.E. 477; Jones v. W. A. Smith & Co., 149 N.C. 318, 62 S.E. 1092, 19 L.R.A., N.S., 1037; Nesbitt v. Fairview Farms, Inc., supra. In the Nesbitt v. Fairview Farms, Inc. case [239 N.C. 481, 80 S.E.2d 477], which was a processioning proceeding to establish the true dividing line between the lands of petitioners held by them as tenants by the entireties and the lands of the respondent, the Court said: "While she" (petitioner's wife) "is not a necessary party to this proceeding, she is a proper party." See also Fowles v. Hayden, 130 Mich. 47, 89 N.W. 571.

In Town of Morganton v. Hudson, 207 N.C. 360, 177 S.E. 169, 170, a town owning an easement over lands for its water-shed and the owner of the fee in such lands brought a joint action against a third person for damages for trespass and to restrain further acts of trespass. Defendant demurred to the complaint on the ground of a misjoinder of parties and causes. In the lower court the demurrer was sustained. This Court reversed the court below holding that the joint action could be maintained, because both plaintiffs had an interest in the lands. In its opinion the Court also said: "An easement is an interest in land, and it has been held by this court that a tenant and an owner may be properly joined in an action for trespass or remainderman and life tenant."

This is the only cause of action the plaintiffs have alleged: A joint action for damages for trespass by the defendant upon the lands and home they own, and at the same time to restrain further trespasses upon their lands and home by the defendant. It is true that the complaint alleges that the dust settling in their home has caused a great deal of extra working and labor on their part, and the exposure of themselves and their children to this dust charged with, and partly made up of, minute and invisible particles of silicon dioxide, which produces silicosis, has caused them fear and mental anguish on account of the threat to their health and that of the health of their children, but these are alleged as elements of damages for the defendant's wrongful trespass upon their lands and home, and as grounds for the issuance of a restraining order, and not as separate causes of action. The admissibility in evidence of all these facts alleged as elements of damages and as grounds for a restraining order are not before us for decision, for the reason that the sole question before us is as to whether there is a misjoinder of parties and causes. This Court said in Lee v. Stewart, 218 N.C. 287, 10 S.E.2d 804, 805: "Where a trespass is shown the party aggrieved is entitled at least to nominal damages." Numerous cases are cited in support.

The plaintiffs in their brief state "there is only one defendant and one cause of action"; that the allegation of mental anguish is merely an element of damages and not a cause of action; and that the threat of silicosis is alleged merely as a ground for abatement of a nuisance by injunction.

In this case there is no misjoinder of causes. Morgan v. High Penn Oil Co., supra; Town of Morganton v. Hudson, supra. And further, there is no misjoinder of parties for G.S. § 1-68 provides that "all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs," and it does not appear that the exception in the statute is applicable here.

The court below properly overruled the demurrer for an alleged misjoinder of parties and causes.

Affirmed.

DEVIN, J., took no part in the consideration or decision of this case.