Hudson v. Town of Morganton

Adams, J. The judgment of the Superior Court is affirmed. The defendant has not acquired an easement in the land of the plaintiff by grant, prescription, dedication, or condemnation. Davis v. Robinson. 189 N. C., 589; Draper v. Conner Go., 187 N. C., 18. Nor does the plaintiff allege that the defendant made an unlawful entry upon her land by a technical trespass. The waters of Jerry’s Creek have not been wrongfully diverted or diminished to the injury of the plaintiff and the pipe extending from the creek to the main pipeline is not alleged to be on the plaintiff’s premises. The defendant has not physically invaded or taken the plaintiff’s property, but she insists that her right to compensation is not necessarily dependent upon the physical appropriation of her land. It is true that a municipal corporation may be liable for damages carried through the medium of polluted water or noxious air, or similar nuisance, and to this extent the damages would be deemed a taking or appropriation. Rhodes v. Durham, 165 N. C., 681; Dayton v. Asheville, 185 N. C., 12; Sandlin v. Wilmington, ibid. 257. But the plaintiff’s alleged cause of action is not within the principle upon which these cases were decided. The sanitary inspector is directed personally to give to the head of each household on the watershed, or in his absence to some member of the household, instructions necessary to the proper sanitary care of his *355 premises. These instructions must be followed, any person refusing or neglecting to comply with them being guilty of a misdemeanor. O. S., 7121, 7123. The plaintiff alleges that the defendant failed to observe these statutes and that because of her apprehension of incurring the penalty prescribed by section 7123 and of being'prosecuted for alleged trespass upon the watershed she was forced to abandon the legitimate use of her premises as a home and farm. Tier apprehension in these respects does not constitute a cause of action. If, as she alleges, the defendant failed to furnish the instructions for sanitation she would not have been subject to a penalty, the enforcement of which was dependent on a precedent condition which the defendant had not performed; and with reference to the notice to trespassers it may be said that the complaint has no distinct allegation that the notice was posted on the plaintiff’s premises or that the watershed included her land, any implication in reference to the latter proposition arising from the alleged conversation between the plaintiff and the mayor of the town being remote and inadequate. And it is not easy to perceive in what way the abandonment by the authorities of a public road on the land in question would result in liability on the part of the defendant. Neither of the appellant’s exceptions, all of which have been considered, affords good cause for a new trial. ■ Affirmed.