Lightner v. City of Raleigh

OlaRicsoN, J. The controversy succinctly is to the effect: (1) That defendant is emptying its sewage into Walnut Creek and started doing so early in 1890. (2) In 1910, the city built an impounding reservoir on *501 Walnut Creek above the reservoir at tbe pumping station, and in 1923 another impounding reservoir called Lake Johnson was built still further up Walnut Creek, and extracted the natural flow of water from Walnut Creek and turned it back in filth, through the sewer system. (3) The waterworks and sewer system were extended, revised and the outfall in Walnut Creek enlarged in 1922-23. (4) John Bray, who was commissioner of Public Works for the city of Raleigh for four years, the last year, 1923, a witness for the plaintiffs, testified, in part: “Of course, there were a great many houses built in the eastern, as well as over all the city as far as that goes, and that increased the capacity of the sewage. All of the State institutions having increased their numbers, including State College, which in 1911 was about nearly five hundred, and in 1929 about nine hundred and now about eleven hundred. And the penitentiary and the asylum, the blind institution have come in since then, all connected to sewer lines emptying into Walnut Creek. I couldn’t tell you as of the year of 1929, how much the natural flow of the water in the creek had been diminished by these various changes, building and other things, but I think the sewage, increase capacity on the sewage, would be around thirty per cent. I might say between 1917 and 1929. Most of the increases in houses and population in the institutions took place in 1919 and 1929. The third sewer line above Lightner’s land was put in in 1923. These institutions came in the sewer system about five years prior to that time.” (5) B. L. Crocker, a witness for defendant, who has been in the real estate business in Raleigh 20-odd years, testified, in part: “I have a fair knowledge of the general occupancy of property in the southeast section of the city. I should think four or five hundred houses have been vacant in the last four or five dr six years. Even today there are many vacant houses. At one time, a lot of Negroes worked for R. G. Lassiter and those houses were built out there and they occupied them. Since then, the Negroes have gone elsewhere seeking employment. This condition of vacancy which I have described existed in that section of the city.” (6) J. A. Whitman, director of the Utilities Division Department of Public Works, witness for defendant, and connected with the city in an engineering capacity since 1923, testified, in part: “In Raleigh, our per capita consumption of water from the filter plant runs about fifty-seven gallons; infiltration amounts to another ten gallons, with a total of sixty-seven gallons per capita at the present time. What I meant by my reference as to gallon for gallon was that you will eventually deposit the same amount into the sewer system as you consume. That is the experience generally from a long calculation. I have the record of the volume for 1926. The actual amount will daily average four and seven-tenths million gallons. In 1929, it averaged *502 about three million per day, that is, there was more than a million gallons less per day in 1920 than there was in 1926. The records indicate that the actual dumpage into Walnut Creek was less in 1929 than it was in 1926. There has been a gradual decrease ever since 1926, up to the present time.” (7) It was in evidence and contended by defendant: “That at the time that plaintiff purchased the premises alleged to have been damaged, the sewage from the entire southern portion of the city of Raleigh was being dumped into said creek and the plaintiffs were and should have been advertent to that fact; that they. knew of the construction or extension of the additional sewer line running east and west and made no objection thereto. That prior to the time the plaintiffs purchased said tract of land, former owners operated farms thereon and this is the first and only time any owners thereof have complained or alleged that said land was damaged or affected by the discharge of the said sewer into said creek.” Chapter 207, Private Laws of 1889, “An act to amend the charter of the city of Raleigh, North Carolina,” section 3, subsection 1, in part is as follows: “They may also construct or contract for the construction of a system of sewerage for the city, and protect and regulate the same by adequate ordinances; and if it shall be necessary, in obtaining proper outlets for the said system, to extend the same beyond the corporate limits of the city, then in such case the board of aldermen shall have the power to so extend it, and both within and without the corporate limits to condemn land for the purposes of right of way, or other requirements of the system, the proceedings for such condemnation to be the same as those prescribed in chapter forty-nine, volume one of The Code.” Similar power is given in chapter 59, Private Laws of 1913, “An act to incorporate the city of Raleigh and to repeal its present charter-and all laws in conflict with this act.” The defendant set up the defense of an easement. In 20 R. O. L., sec. 114, p. 498, in part, it is said: “The rule is universally recognized that prescription or lapse of time cannot be relied on to establish a right to maintain a public nuisance.” Part section 115, p. 499: “In the case of nuisances that are purely private in character, prescription is generally recognized as a good defense.” In regard to the question of easement, the court below, on the second issue submitted to the jury, correctly charged them: “In respect to this issue, however, gentlemen, and after considering the decisions of the Supreme Court applicable to the cases of this kind, I am of the opinion that issue will have to be answered in favor of the plaintiffs. I, therefore, direct you, gentlemen, that if you find the facts to be as testified by all of the witnesses, to answer the second issue £No.’ ” *503 In Cook v. Mebane, 191 N. C., 1 (6): “The court’s definition is tbe one generally accepted. 29 Cyc., L. & P., p. 1152 : ‘Tbe term “nuisance” means literally annoyance; anything which works hurt, inconvenience, or damage, or which essentially interferes with the enjoyment of life or property.’ ” Hodgin v. Liberty, 201 N. C., 658 (660-1); Holton v. Oil Co., 201 N. C., 744 (747). In Cook v. Mebane, supra, at pp. 4-5, is the following: “As to polluting water, it was said in Finger v. Spinning Co., 190 N. C., p. 18: ‘The fact that this may call for the expenditure of large sums of money by defendants cannot be considered as justifying the continuance of a trespass upon or a nuisance to the lands of plaintiff by defendants. As said by Chief Justice Clark, in Rhyne v. Mfg. Co., supra, 182 N. C., 489: “Defendants must attain its ends, advance its interests, or serve its convenience by some method, whether in improving its sewerage system or otherwise, which shall be in accordance with the age-old maxim that a man must use his own property in such a way as not to injure the rights of others, sic títere iuo, ut alienum non lados." ’" "Hoke, J., in Donnell v. Greensboro, 164 N. C., 334, speaking to the subject of sewage disposal, says: ‘The decisions of this State are in approval of the principle that the owner can recover such damage for a wrong of this character, and that the right is not affected by the fact that the acts complained of were done in the exercise of governmental functions or by express municipal or legislative authority, the position being that the damage arising from the impaired value of the property is to be considered and dealt with to that extent as a “taking or appropriation,” and brings the claim within the constitutional principle that a man’s property may not be taken from him for the public benefit except upon compensation duly made.’ ” Citing numerous authorities. Chapter 59, supra, Art. XXII, sections 1 and 2, requires certain notice to defendant city, which seems to have been done in accordance with the statutes, C. S., 442. Peacock v. Greensboro, 196 N. C., 412. The contention of the defendants: “Is the action barred by the three-year statute of limitations? Sec. 405, N. 0. Code, 1931 (Michie) : ‘Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action has accrued; except where in special cases a different limitation is prescribed by statute. The objection that the action was not commenced within the time limited can only be taken by answer.’ Sec. 441, subsec. 3 : ‘For trespass upon real property. When the trespass is a continuing one, the action shall be commenced within three years from the original trespass, and not thereafter.’ The question arises — What constitutes a continuing trespass, and what the original trespass ?” *504 The principle is set forth in 37 C. J., “Limitations of Actions,” part sec. 249, pp. 883-4: “Oases frequently arise where damages resulting from an act are continuing or recurring so that they cannot presently be ascertained or estimated so as to be presently recoverable in a single action. In such cases separate and successive actions may be brought to recover the damages as they accrue, and a judgment rendered in one of such actions for damages accrued up to the time when suit was brought is no bar to another action to recover damages accruing after the judgment. To cases of this character, the statute of limitations does not have the same rigid application as to cases where all the damages may be recovered in a single action, and the two main principles applying are as follows: Where continuing or recurring injury results from a wrongful act or from a condition wrongfully created and maintained, such as a continuing nuisance or trespass, there is not only a cause of action for the original wrong, arising when the wrong is committed, but separate and successive causes of action for the consequential damages arise as and when such damages are from time to time sustained; and therefore so long as the cause of the injury exists and the damages continue to occur plaintiff is not barred of a recovery for such damages as have accrued within the statutory period beyond the action, although a cause of action based solely on the original wrong may be barred, and this has been termed the general rule, to which the rule, where the injury is permanent, is an exception.” Perry v. R. R., 171 N. C., 38; Teeter v. Telegraph Co., 172 N. C., 783; Morrow v. Florence Mills, 181 N. C., 423; Anderson v. Waynesville, 203 N. C., 37; Gray v. High Point, 203 N. C., 756. In Langley v. Hosiery Mills, 194 N. C., 644 (646), is the following: “In a later case against the same defendant (Webb v. Chemical Co., 170 N. C., 662), the plaintiff appealed, assigning for error the judge’s refusal to submit an issue for permanent damages, and it was held that the case was not one of those in which, at the election of the plaintiff, such an issue must be submitted, Hoke, J., remarking: Un some cases on this subject, it has been held that, when one erects a substantial building or other structure of a permanent character on his own land which wrongfully invades the rights of an adjoining proprietor by the creation of a nuisance or trespass, the injured party may “accept or ratify the feature of permanency and sue at once for the entire damage.” Chicago Forge and Bolt Co. v. Sanche et al., 35 Ill. Ap., 174. But in cases strictly of private ownership, the weight of authority seems to be that separate actions must be brought for the continuing or recurrent wrong, and plaintiff can only recover damages to the time of action commenced. In this State, however, to the time of trial.’ ” Citing numerous authorities. “In cases of private ownership, an issue *505 for permanent damages may be submitted by consent of the parties. Morrow v. Mills, 181 N. C., 423.” Wharion v. Mfg. Co., 196 N. C., 719. In tbe instant case, the plaintiffs elected to pray for permanent damages, which they had the right to do as the property was attempted to be taken by defendants for a public purpose. Rhodes v. Durham, 165 N. C., 679 (680). The court below charged the jury as follows: “Is the plaintiffs’ cause of action barred by the three-year statute of limitation, as alleged in the answer? G-entlemen, it is my view of the law, and you, gentlemen, of 'course, will take the law from me — and if I am wrong, I can be overruled by the Supreme Court— but as I view the law of this case, the damages which the plaintiffs would be entitled to recover, if any, would be limited to what has occurred within the last three years prior to the beginning of this suit. In other words, gentlemen, they cannot maintain an action for damages against the city of Raleigh for any depreciation in the value of their lands due to any act upon the part of the city prior to three years before 13 February, 1932, which would be 13 February, 1929. This action was brought on 13 February, 1932, and the defendant having pleaded the statute of limitation, it is my duty to say to you, as I conceive the law to be, that the plaintiffs cannot recover any damages for anything that happened prior to 13 February, 1929. Therefore, gentlemen, I have answered this issue myself, or at least, I direct you to answer it. If you find the facts to be as'testified to by all the witnesses you will answer that issue ‘Yes,’ for all damages accruing prior to 13 February, 1929.’ ” We see no error, from the authorities cited, to this part of the charge to which plaintiffs except and assign error. The court below charged the jury as follows: “We now come to the last issue, or the fifth issue : What damages, if anything, are the plaintiffs entitled to recover of the defendant by reason of the operation and maintenance of said sewerage system? Now, gentlemen of the jury, let me impress this upon you. It is the law, as I understand it, and for the purpose of this action, it is the law, that if you allow the plaintiffs any damages in this case it will only be such damages as were inflicted upon the lands since 13 February, 1929, up to the beginning of this action. That is, permanent damages. . . ." The burden of this issue is upon the plaintiffs. They argue to you that they have been damaged during the years 1930, 1931, 1932, and 1933; that there has been an additional burden cast upon the lands by reason of the overflow of sewage during that period and that you ought, in good conscience, to allow them damages for the depreciation in the value of the land due to this additional burden. These are all questions to be resolved by you, gentlemen, and so, in *506 conclusion, remembering that tbe measure of damages is the difference in value between the lands prior to 13 February, 1929, and after the acts of trespass complained of on the part of the city. That is, gentlemen, you will estimate what was the fair market value of these lands prior to any act of trespass on the part of the city during the past three years. You will then estimate what the lands were worth after the acts complained of during the past three years prior to the institution of this action. You will deduct the latter figure from the former and the difference between the two would be your answer to this issue.” We think this charge substantially, the same as we approved in Wagner v. Conover, 200 N. C., 82 (85): “Permanent damage means whatever injury has been done to the place and will be done — that is, damages to its value. In other words, how much, if any, had this sewer system there damaged the place, and the way to get at the amount of damage, if you reach that is this: You will ascertain what the place would be worth if the sewer system was not there, and no pollution of the water by the defendant. Set that down in figures. Then ascertain what would be the market value of the land in its present condition— and set that down, and if that is less than the amount if the sewage were not there, then subtract the one from the other, and that would be your answer to the third issue, if you reach that issue.” The court charged that it must be permanent damage — but did not define same as in the Wagner case, supra. If plaintiffs wanted the charge more specific or in detail, on the different phases of the controversy and as to permanent damage, they should have presented prayers for instruction. We see no error in the issues submitted. They arose on the pleading and are determinative of the facts in dispute. It may have been better to have submitted an issue as to permanent damages, but the charge covered same. We can only consider here matters of law or legal inference. Art. IV, sec. 8, Constitution of North Carolina, in part: “Jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference.” The jurors are the triers of the facts, if on the record we differ, in their findings, we have no power to correct them. The brief of plaintiffs setting forth the wrong done them, however sympathetic we may be, was for the jury to consider, and not us. For the reasons given, we find in the judgment, No error.