Wiseman v. TOMRICH CONSTRUCTION COMPANY

109 S.E.2d 248 (1959) 250 N.C. 521

T. T. WISEMAN and wife, Willie M. Wiseman,
v.
TOMRICH CONSTRUCTION COMPANY.

No. 673.

Supreme Court of North Carolina.

June 12, 1959.

Bryant, Lipton, Strayhorn & Bryant, Durham, for plaintiffs, appellees.

Spears, Spears & Powe, Durham, for defendant, appellant.

BOBBITT, Justice.

Defendant's assignments of error are directed (1) to the admission, over its objection, of testimony relating to the fair market value of plaintiffs' land immediately before and immediately after the installation of the 54-inch pipe; (2) to the submission, over its objection, of said second issue; and (3) to the court's refusal to submit in lieu of said second issue an issue tendered by it, to wit: "If so, in what amount have the plaintiffs been damaged between the time of completion of construction of the storm drain in Lorain Avenue and the time of the acceptance of Lorain Avenue for maintenance and use as a public street by the City of Durham?"

"It is well settled that an action at law for damages will lie against one who wrongfully diverts or collects and discharges surface water on adjoining lands * * *" 56 Am.Jur., Waters § 85; 93 C.J.S. Waters § 127; Phillips v. Chesson, 231 N.C. 566, 58 S.E.2d 343; Jackson v. Kearns, 185 N.C. 417, 117 S.E. 345.

If, upon the facts in evidence, plaintiffs were entitled to recover permanent damages, the said testimony was relevant and properly admitted. Clinard v. Town of Kernersville, 215 N.C. 745, 752, 3 S.E.2d 267; Langley v. Staley Hosiery Mills, 194 N.C. 644, 140 S.E. 440; Brown v. Virginia-Carolina Chemical Co., 162 N.C. 83, 77 S.E. 1102, 45 L.R.A.,N.S., 773.

The determinative question is whether defendant, a private corporation, is legally liable to plaintiffs for permanent damages. Defendant says "No," contending its liability is limited to damages sustained by plaintiffs during the period between the completion by defendant of its construction of the 54-inch storm drain in Lorain Avenue and the acceptance of Lorain Avenue for maintenance and use as a public street by the City of Durham.

No decision, in this jurisdiction or elsewhere, cited or disclosed by our research, involves a closely analogous factual situation. For analysis of decisions obliquely relevant, see Case Comment by Charles P. Rouse, "Damages—Nuisance—Single or Successive Recoveries for Permanent and Continuing Nuisances and Trespasses," 7 N.C.L.R. 464, and "Distinction between Completed and Continuing Invasions of the Landowner's Interest—the ``Permanent Nuisance' Doctrine," McCormick on Damages, § 127.

Our decisions sanction the recovery of permanent damages by a landowner as a matter of right when the defendant, a municipal or other corporation having the power of eminent domain, could acquire by condemnation the right to commit the alleged continuing nuisance or trespass. In such case, permanent damages will be assessed upon demand of either party; and, when such demand is made, the action becomes in effect a condemnation proceeding. Clinard v. Town of Kernersville, supra, and cases cited. When the defendant's right to continue the alleged nuisance or trespass is protected by its power of eminent domain, the remedy of abatement is not available to the landowner. Rhodes v. City of Durham, 165 N.C. 679, 81 S.E. 938, and cases cited.

On the other hand, this Court has held that a landowner may not as a matter of right recover permanent damages from a private corporation or individual for the maintenance of a continuing nuisance or trespass. His remedy is to recover in separate and successive actions for damages sustained to the time of the trial. Phillips v. Chesson, supra, and cases cited. However, the parties may consent that an issue as to permanent damages be submitted; and in such case the defendant, upon payment of permanent damages so assessed, acquires a permanent right to continue such nuisance or trespass as in condemnation. Aydlett v. Carolina By-Products Co., 215 N.C. 700, 2 S.E.2d 881; Clinard v. Town of Kernersville, supra.

With reference to actions against private corporations or individuals, our decisions suggest two reasons for the stated rule: (1) The defendant may voluntarily abate the nuisance, or the nuisance or trespass may be abated or restrained by court action. (2) "* * * the defendant's willingness to abate or remove the cause of damage may be stimulated when repeatedly mulcted in damages by reason of its continued maintenance," Phillips v. Chesson, supra [231 N.C. 566, 58 S.E.2d 347], and cases cited; Ridley v. Seaboard & R. R. Co., 118 N.C. 996, 24 S.E. 730, 32 L.R.A. 708.

The factual situations considered by this Court in actions between private parties where the landowner's remedy in respect of damages was so restricted, may be classified as follows: (1) Actions between adjoining landowners, absent such public interest as may be involved in the continued operation of a manufacturing or similar plant, e. g., Phillips v. Chesson, supra, and Winchester v. Byers, 196 N.C. 383, 145 S.E. 774. Whether, in the cited cases, the plaintiff was entitled to injunctive relief was not decided. Compare Wharton v. Empire Manufacturing Co., 196 N.C. 719, 146 S.E. 867, where the nuisance was abated prior to trial. (2) Actions based on the defendant's operation of a manufacturing or similar plant in such manner as to pollute the air by the discharge of noxious and offensive fumes and gases, Webb v. Virginia-Carolina Chemical Co., 170 N.C. 662, 87 S.E. 633, L.R.A.1916E, 971; Morrow v. Florence Mills, 181 N.C. 423, 107 S.E. 445; Brown v. Virginia-Carolina Chemical Co., supra; Id., 165 N.C. 421, 81 S.E. 463; or in such manner as to contaminate a stream by discharging waste materials therein, Clinard v. Town of Kernersville, supra; Langley v. Staley Hosiery Mills, supra; Webb v. Virginia-Carolina Chemical Co., supra.

Whether the remedy of abatement was available to plaintiffs prior to defendant's said development of Glendale Heights Extension need not be considered. Suffice to say, after defendant had completed such development, and had constructed houses and sold lots within the subdivision, and had dedicated the streets to public use, and the streets so dedicated had been accepted as public streets by the City of Durham, the rights of individual homeowners and of the public had intervened to such extent that the remedy of abatement was not available to plaintiffs.

These distinctive features of cases of the second class should be noted: Whether the remedy of abatement is available to plaintiff depends upon all circumstances relating to the operation of such plant. Causby v. High Penn. Oil Co., 244 N.C. 235, 93 S.E.2d 79; Webb v. Virginia-Carolina Chemical Co., supra; Duffy v. E. H. & J. A. Meadows Co., 131 N.C. 31, 42 S.E. 460. Too, the recurring or intermittent damages flow from the recurring or intermittent operation by defendant of its plant. The underlying idea is that such damages result from successive wrongs for which separate recoveries may be had rather than from a single irremediable wrongful act.

It is stated in 21 A. & E. Enc., "Nuisances," pp. 732-733, that the entire damages, both past and prospective, are recoverable in one action, at the election of the plaintiff, where "the ``source of injury is permanent in its nature and will continue to be productive of injury independent of any subsequent wrongful act.'" While not the basis of decision, this statement is quoted in Webb v. Virginia-Carolina Chemical Co., supra [170 N.C. 662, 87 S.E. 634].

In Mast v. Sapp, 140 N.C. 533, 53 S.E. 350, 353, 5 L.R.A.,N.S., 379, it was held that defendant's negligence became actionable when the wall of his reservoir gave way, destroying a nearby house and killing the owner-occupant. Whether the intestate's administrator or her heir was entitled to damages for destruction of the house was the question presented. It was held that the recovery was indivisible and that the heir was not entitled to recover unless he established that the wrong occurred after the intestate's death.

In Mast v. Sapp, supra, Walker, J., distinguished cases involving "a nuisance or trespass, which torts are continuing in their nature; the nuisance of to-day being a substantive cause of action, and not the same with the nuisance of yesterday, and likewise in the case of a continuing trespass." With further reference to such cases, Walker, J., stated: "They are manifestly not like a case where the wrongful act is single and the tort-feasor has irrevocably done all that he can do, though the unlawful act has not fully spent its force, but as a self-acting agency, once put in motion continues to cause damage. The wrong itself is an accomplished fact, which its author can not recall or stop, though its consequences in the way of damage still go on." Here, the consequences of defendant's wrongful act will continue indefinitely; and defendant, by its conduct, has deprived itself of legal authority to relieve plaintiffs from such consequences.

It is stated by Hoke, J. (later C. J.), in Rhodes v. City of Durham, supra [165 N.C. 679, 81 S.E. 939]: "Our decisions are also in support of the proposition that where the injuries are by reason of structures or conditions permanent in their nature, and their existence and maintenance is guaranteed or protected by the power of eminent domain, or because the interest of the public therein is of such an exigent nature that right of abatement at the instance of an individual is of necessity denied, it is open to either plaintiff or defendant to demand that permanent damages be awarded; the proceedings in such cases to some extent taking on the nature of condemning an easement. (Citations)" (Our italics) This is quoted verbatim in Webb v. Virginia-Carolina Chemical Co., supra, and restated in Clinard v. Town of Kernersville, supra. A similar statement appears in Brown v. Virginia-Carolina Chemical Co., supra, 165 N.C. 421, 81 S.E. 463.

Apparently, no decision has applied the proposition set forth in the italicized words. They are appropriate to the present factual situation.

Defendant's development of Glendale Heights Extension, including the construction and installation of the 54-inch storm drain in Lorain Avenue, was a single, completed, wrongful act. Defendant created a permanent condition which, when the rains descend and the floods come, cause and will continue to cause recurring and intermittent damage to plaintiffs' land. All such damages result proximately from defendant's original wrongful act. Glendale Heights Extension was so developed to enhance the value of the lots sold and to be sold, after as well as before the acceptance of the streets, including Lorain Avenue, as public streets of the City of Durham.

The City of Durham, which is not a party to this action, committed no wrongful act. Its acceptance of Lorain Avenue for maintenance and use as a public street did not affect the damage done to plaintiffs' land. It simply relieved defendant of further obligation for such maintenance. Whether, under the quoted charter provision, the City of Durham acquired the fee in Lorain Avenue as distinguished from the right to the use thereof as a public street makes no difference. Plaintiffs' cause of action is indivisible and accrued not later than the first occasion when surface waters were collected in said 54-inch storm drain and were discharged upon and damaged plaintiffs' land. Mast v. Sapp, supra.

The fact that Glendale Heights Extension was developed in respect of streets, drainage systems, etc., under the supervision and in accordance with the requirements of the City of Durham does not affect defendant's liability. The work was so conducted for defendant's benefit in order to induce the inclusion of its residential subdivision within the City of Durham and the acceptance by the City of Durham as public streets of the areas laid out in defendant's subdivision and designated as streets.

Under the circumstances here disclosed, plaintiffs were entitled to recover permanent damages from defendant.

No question is raised as to the measure of damages in such case. Indeed, the charge of the trial court was not included in the record on appeal. Hence, it is presumed that the jury was instructed correctly on every principle of law applicable to the facts. Hatcher v. Clayton, 242 N.C. 450, 453, 88 S.E.2d 104.

The judgment of the court below is affirmed.

Affirmed.