Holton v. Northwestern Oil Co.

OlabicsoN, J. At tbe close of plaintiffs’ evidence tbe defendant made a motion in tbe court below for judgment as in case of nonsuit. C. S., 567. This motion was sustained, and in this we can see no error. It is tbe well settled rule of practice and accepted position in this jurisdiction that, on a motion to nonsuit, tbe evidence which makes for tbe plaintiff’s claim and which tends to support bis cause of action, whether offered by tbe plaintiff or elicited from tbe defendant’s witnesses, will be taken and considered in its most favorable light for tbe plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom. Tbe principle applicable in this action is set forth in Yol. 1, Wood on Nuisances (3d ed.), sec. 496, at pp. 677-8, as follows: “Ey an atmosphere free from artificial impurities is meant, not air as free and pure *747 as it naturally is, entirely devoid of impregnation from artificial cause, but an atmosphere as free and pure as could reasonably be expected, in view of the location and its business. If the strict rule applicable to natural rights should be applied, it would seriously disturb not only the business, but also the moral and social interests of society. Therefore the law relaxes the strict rigor of the rule, and does not recognize every business or use of property as a nuisance that imparts a degree of impurity to the air, for if such were the case, towns could not be built, nor life in compact communities tolerated, and even the ordinary uses of property would be seriously interfered with, for in proportion to the spareness or compactness of a population is the air pure or impure. One cannot reasonably occupy a dwelling-house or place of business and use any kind of fuel therein, without imparting more or less of impurity to the atmosphere, and in proportion as these are aggregated in one locality, are these impurities increased; but as these are among the common necessities of life, and absolutely indispensable to its reasonable enjoyment, the law does not recognize them as being actionable interferences with the rights of others, unless exercised in an unreasonable manner, so as to inflict injury upon another unnecessarily. . . . (Sec. 491, p. 679.) The law only deals with real, substantial injuries, and such as arise from a wrongful use of property, and will not lend its aid to check one engaged in a lawful pursuit simply because his neighbor is annoyed, or even damaged thereby, unless the use complained of is both in violation of that neighbor’s right and unreasonable.” As to what constitutes a private nuisance, we have perhaps as good a definition as elsewhere in Adams’ Equity, p. 210: “A private nuisance is an act done, unaccompanied by an act of trespass, which causes a substantial prejudice to the hereditaments, corporeal or incorporeal, of another.” Burdick’s Law of Torts, 4th ed. sec. 420; Bigelow on Torts, 8th ed., 445. “The term nuisance means literally annoyance; anything which works hurt, inconvenience, or damage, or which essentially interferes with the enjoyment of life or property.” 29 Cyc. L. & P., p. 1152. Cook v. Mebane, 191 N. C., at p. 6; Board of Health v. Lewis, 196 N. C., 641; Surratt v. Dennis, 199 N. C., 757; Swinson v. Realty Co., 200 N. C., 276; Hodgin v. Liberty, ante, at p. 660-1. “Automobiles are here to stay, and are now generally used for business and pleasure, and it is necessary for the convenience of the public that filling stations and garages be established and even in residential sections of cities and towns they are held not to be nuisances per se. Hanes v. Carolina Cadillac Co., 176 N. C., p. 351; Bizzell v. Goldsboro, 192 N. C., 348; Clinton v. Oil Co., 193 N. C., 432. In every civilized *748 country it is well settled, with rare exceptions, that private property cannot be taken for private purposes and private property can only be taken for public purposes upon the payment of just compensation. A gasoline station is not, under the law, per se a 'hazard.’ It might be to some an 'eye-sore,’ but the law does not allow aesthetic taste to control private property, under the guise of police power.” MacRae v. Fayetteville, 198 N. C., at p. 54. The law only deals with real, substantial injuries — De minimus non curat lex. The law does not recognize nervous particularity. As to the odor of gasoline from the baby filling station built of brick, 10 feet by 15 feet, with the shift of the wind carrying same to plaintiffs’ home, some 65 feet away, and such like odors when tanks are filled and at other times, we cannot hold as a substantial injury. As to the boys cursing and trying to fight, and at one time the operator drunk, plaintiffs could have stopped this annoyance by calling on the chief of police of the town, or other officer; and also to stop, if defendant did so, the filling up of the little ditch with pop bottles, or the little building encroaching on the side-walk across the sand-clay road 65 feet from plaintiffs’ home. In fact, it is the duty of all our citizens and the police of the towns and cities to see that all violations of law are punished. As to the plaintiffs’ home being lower than the filling station and the drainage from the filling station in that direction: In Porter v. Durham, 74 N. C., at p. 779, the law as stated is as follows: “It has been held that an owner of lower land is obliged to receive upon it the surface water which falls on adjoining higher land, and which naturally flows on the lower land. Of course when the water reaches his land the lower owner can collect it in a ditch and carry it off to a proper outlet so that it will not damage him.” Winchester v. Byers, 196 N. C., at p. 384; Sykes v. Sykes, 197 N. C., 37; Bonapart v. Nissen, 198 N. C., 180. The authorities of the town of Yadkinville gave defendant a permit to build the filling station, it goes without saying that they could not grant permission to create a nuisance. The gasoline station was not a nuisance per se. We cannot hold on the entire evidence that the matters complained of were such real, substantial injuries as give the plaintiffs a cause of action for nuisance. The human family ordinarily does not find the simple life in the thickly settled towns and cities, therefore when the matters complained of are such as are common and usual, and no unreasonable and unnecessary injuries are inflicted, the law does not interfere. The judgment below is Affirmed. Stacy, C. J., dissents.