Donnell v. City of Greensboro

Hoke, J., after stating tbe -facts: On tbe first and second issues and by reference to tbe pleadings, tbe evidence and tbe charge of tbe court, tbe plaintiff bas been allowed to recover $1,000, tbe damage done bis property by tbe creation and maintenance of an actionable nuisance on tbe part of defendant, and on careful consideration of tbe record we find no reason for disturbing tbe result of tbe trial. Tbe decisions of tbis State are in approval of tbe principle tbat tbe owner can recover sucb damage for a wrong of tbis character, and tbat tbe .right is not affected by tbe fact tbat tbe acts complained of were done in tbe exercise of governmental functions or by express municipal or legislative authority, tbe position being tbat tbe damage arising from tbe impaired value of tbe property is'to be considered and dealt with to tbat extent as a “taking or appropriation,” and brings tbe claim within tbe constitutional principle tbat a man’s property may not be taken from him even for tbe public benefit except upon compensation duly made. Tbis decision, announced in Little v. Lenoir, 151 N. C., 415, in an opinion by Associate Justice Manning, was reaffirmed and applied in tbe more recent cases of Moser v. Burlington, 162 N. C., 141; Hines v. Rocky Mount, 162 N. C., 409, and is sustained, we think, by the great weight of authority in tbis country. ’ Winchell v. Wauseka, 110 Wis., 101; Bohan v. Port Jervis, 122 N. Y., 18; Joplin Manufacturing Co. v. City of Joplin; 124 Mo., 129; Village of Dwight v. Hayes, 150 Ill., 213; Mackwordt v. City of Guthrie, 18 Okla., 32; Platt v. Waterhurg, 72 Conn., 531. Tbe courts of Indiana and probably cases in one or two of tbe other States seem to have adopted tbe contrary view. In tbe ease from Indiana to which we were more particularly referred, City of Valparaiso v. Hagen, 153 Ind., 237, tbe question more'directly presented was tbe right of certain riparian *335 owners to an injunction against tbe discharge of tbe sewage into tbe streams, ratber tban tbe right of recovery for damages suffered. To tbe extent, however, that this and other cases of like kind tend to uphold tbe position that any and all recovery is denied for wrongs of this character where the acts complained of are done pursuant to governmental authority, they are not, in our opinion, in accord with the better reason, nor, as stated, with tbe weight of well considered authority. We do not understand that tbe decision of tbe United States Supreme Court in Northern Transportation Co. v. City of Chicago, 9 U. S., 635, in any way militates against our .present ruling. In that case tbe city of Chicago on the extension of LaSalle Street, acting under proper legislative authority, was excavating a tunnel under tbe Chicago Eiver. Tbe work was. being done with due care and skill and, so far as appears, in the only feasible manner. The plaintiff sued, claiming damages because tbe city in doing tbe work had obstructed certain entrances giving ancess to plaintiff’s property. Eecovery was denied on the recognized ground that mere consequential damage arising from tbe lawful use of one’s own property or in tbe lawful exercise of governmental functions is not recoverable. And tbe Court, adverting to the principle, held that a tempo-, rary inconvenience arising from work of 'that character and done in this way was not such an encroachment upon tbe plaintiff’s property as could be considered a taking within tbe meaning of tbe constitutional principle. But not so here; the- verdict, as we have seen, on tbe first and second issues having established that defendant has created and maintained an actionable nuisance, constituting a direct invasion of the proprietary rights of the owner and permanently impairing the value of bis property to the amount of $1,000. In such case, and except as affected by the existence of certain rights peculiar to riparian ownership, a recovery does not seem to depend on whether tbe damage is caused through the medium.of polluted water or noxious air; tbe injury is considered a taking or appropriation of tbe property to that extent, and compensation may be awarded. Brown v. Chemical Co., 162 N. C., 83. *336 If it be conceded, therefore, as defendant contends, that the entire right of supervision and control of all streams in cases of this kind has been conferred on our State Board of Health, by Laws 1909, ch. 193, and that defendant has complied with all of the regulations made pursuant to the statute, the right of plaintiff to recover to the extent allowed in this instance would be in no wise affected. On this subject the decisions of the English courts in apparent contravention of the position áre not entitled to that persuasive force usually and deservedly allowed them here, for the reason that in England the power of Parliament is supreme. 'It is not under the constitutional restraints protecting the rights of individuals which prevail in this country and which are made the basis of our present decision. Recognizing this, these acts in almost all instances make provision for compensation to individuals who are injured in carrying out their measures; but where they do not, and are clearly incapable of such interpretation, no recovery of any kind may be allowed in the courts. This constitutes, perhaps, the chiefest difference in our systems of government, and the decisions of the English courts, therefore, interpreting acts of Parliament in reference to this and kindred questions, are not as a rule safe guides to correct conclusion with us. There is no objection open to defendants on their evidence to the effect that Buffalo Creek and Muddy Fork afford the natural drainage to all that portion of the city of Greensboro from which the sewage is emptied into said streams, nor by reason of the fact that there are, north of the city and outside of the corporation, two extensive mill settlements from which objectionable matter is also emptied into these streams. In the careful and comprehensive charge of the court these sources of contamination and any and all effect from them were excluded from consideration, and the jury were confined to the damages arising by reason of operation of defendant’s sewerage system, and not otherwise. The only perplexity presented in the record arises from the apparent conflict in the findings of the jury on the first and second and on the fifth and sixth issues. It is well understood *337 tbat a conflict in a verdict on essential and determinative issues will vitiate, but it is also well recognized tbat a verdict should be liberally and favorably construed witb a view to sustaining it if possible, and tbat in order to a proper apprehension of its significance resort may. be bad to the pleadings, the evidence, and the charge of the court (Richardson v. Edwards, 156 N. C., 590; S. v. Murphy, 157 N. C., 614), and in this instance, on perusal of the record, it will clearly appear tbat the fifth and sixth issues were framed and submitted witb a view chiefly of determining the plaintiff’s right to injunctive relief, his Honor being of opinion that this right would only exist in case of substantial damage arising from the negligent failure of the defendant and its agents to properly operate the system in accordance with the authoritative regulations established by the State Board of Health. We are not prepared to differ from this view of his Honor (see Morse v. City of Worcester, 139 Mass., 389). But as no injunction was allowed in the case, the question is not presented, and it further appears that his Honor was careful in directing the jury that their finding on the fifth and sixth issues should not be allowed to affect their consideration of the first and second. We are not unmindful of the suggestion also appearing from the facts in evidence that there are thirty or forty suits of like kind against the city dependent on the determination of the present action, and that if recoveries are allowed, a burdensome liability may be established. Eecognizing the importance of the principle involved and the practical effect of its application in the present instance, we have given the cause our most careful consideration, and, having done this, we must administer the law as we are enabled to see it, and trust to the moderation and good sense of our juries to make fair and righteous adjustment of the conflicting interests involved. There is no error, and the judgment as entered on-the verdict is Affirmed.