Brown v. Virginia-Carolina Chemical Co.

Hoke, J. On a former trial of cause there was verdict for plaintiff, fixing liability for a nuisance in the maintenance and operation of a manufactory of commercial fertilizers and assessing permanent damages at $300. Judgment having been entered on the verdict, plaintiff appealed, assigning for error a portion of the judge’s charge on the issue as to permanent damages. A new trial was awarded on this issue (see case, 162 N. C., 83), and the opinion having been certified down, the cause came on for a new trial of that issue before his Honor, C. C. Lyon, judge, as stated. On the present trial, defendant maintained that this was not a case permitting an award of permanent damages, and, in order to present the question in a determinative form, issues were submitted-, both as to recurrent and permanent damages. Yerdict having been rendered, his Honor gave judgment for the permanent damages assessed. Defendant excepted and appealed. As an original or independent proposition, the Court is not prepared to differ with defendants’ view that the cause is not one permitting the award of permanent damages as a matter of right. The cases in which that principle has been thus far allowed to prevail in this State are those where it was expresslyp established by statute or where the injuries arose from structures or conditions permanent in their nature and their continued maintenance was protected and guaranteed by the statutory power of eminent domain, as in casé of roads and railroads, or because the interest of the public in this continued existence was of such an exigent nature that the right of the individual owner was of necessity and to that extent subordinated to the public good. See cases Harper v. Lenoir, 152 N. C., 723; Geer v. Durham Water Co., 127 N. C., 349; Parker v. R. R., 119 N. C., 677; Bidley v. R. R., 118 N. C., 996. *424 Tbe question, however, in our opinion, is not necessarily presented on this appeal, and we do not decide it, for, while the plaintiff may not have been permitted, in this instance, to sue for permanent damages as a matter of right, the parties have the undoubted privilege of determining the case on that theory if they so elect. It is one usually sought by defendant in order to protect himself from the cost and harassments of repeated suits and to acquire the right of conducting his business by designated methods, and where both parties have elected to have their rights determined on such an issue, it is not open to them, in the discretion of either, to change front and insist on a different method. From a -perusal of the record, we think it clear that this position should prevail in the present case. The plaintiff in the action sought to recover permanent damages for the alleged wrong. The defendant joined issue on the demand in that form, and on verdict and judgment for plaintiff not only filed no exception, but appeared in this Court on appeal and insisted that the cause had been properly tried and determined. Apart from this, the Court only ordered a new trial on the issue as to permanent damages, and defendant, having once tried out his case on that theory, it is no longer open to him to insist on another. Authority elsewhere is in support of this view. Chesapeake R. R. v. Resin, 99 Va., 18; Winona Zinc Co. v. Durham, 56 In. App., 351; Scott v. Nevada, 56 Mo. App., 189. There-is no error in entering judgment for permanent damages, and the same is.affirmed. No error.