Anderson v. Town of Waynesville

Adams, J. Conceding the practice that findings of fact by the trial court, if supported by evidence, are not likely to be questioned on appeal, the defendants say they “will spend no time in debating the correctness of the facts”; but they suggest error in the court's failure to find the facts with respect to some of their contentions. This assignment of error is without merit. The record contains no' entry of a request for the finding of additional facts and necessarily no exception to the action of the court in this respect. The request must have been made and refused and an assignment of error must have been based upon an exception taken during the trial. McLeod v. Gooch, 162 N. C., 122; School v. Peirce, 163 N. C., 424. The appellants argue that upon the f-acts as developed the relief to be given the plaintiffs, if any, must be restricted to the recovery of pecuniary damages in a court of law. They contend, first, that the individual plaintiffs sustain toward the corporate plaintiff a relation similar to that of a board of directors and that the corporation has sufEered no damage that cannot be compensated in money. This view is inconsistent with the facts. The plaintiffs have produced evidence that the defendants have perpetrated a civil wrong which annoys in the enjoyment of their legal rights those whom the plaintiffs represent — not only those whose permanent home, though comparatively few in number, is at the lake, but several thousands of people who spend the summer there and who are entitled to the use and privilege of the water without interference with their health and comfort. It is urged, in the second place, that the plaintiffs have been negligent in- the assertion of their rights and that their laches restricts them to compensation in money. We do not concur in this conclusion, let us concede that the lake was built in 1913 and that until the present action was instituted the plaintiffs took no legal action. Before the dam at the lake was begun the town of Waynesville contracted in writing to connect its sewerage system with the upper edge of the lake, or otherwise satisfactorily to arrange the Waynesville sewerage. In 1913 the town was *45 authorized by popular vote to issue $20,000 dollars for the purpose of complying with its contract, but the bonds have never been issued. The deleterious effect of the sewage on the waters of the lake became appreciable in 1927 and thereafter the parties in several conferences tried to adjust their differences by establishing a sanitary district. It was not until these efforts had failed that the plaintiffs brought this suit. As we understand, the courts generally enforce the rule that a plaintiff does not lose his remedy by mere laches unless by delay his legal rights also are lost and the defendant acquires by prescription a right to commit the nuisance. The evidence tends to disprove acquiescence in the admitted trespass. The injury resulting from a nuisance or a trespass upon real property is continuous in its nature and gives successive causes of action as successive injuries are perpetrated. Continuous injuries caused by the maintenance of a nuisance are barred only by the running of the statute against the recurrent trespasses; and mere inaction on the part of the plaintiff will not defeat his right unless it has continued long enough to effect a change of title. Galway v. Metropolitan R. Co., 13 L. R. A. (N. Y.), 788; 1 Ames, Equity Jurisdiction Cases, 600; Northern Pac. R. Co. v. Boyd, 228 U. S., 482, 57 L. Ed., 931. In Southern Pacific Company v. Bogert, 250 U. S., 483, 63 L. Ed., 1099, the Supreme Court of the United States said this in reference to the doctrine of laches: “More than twenty-two years had thus elapsed since the wrong complained of was committed. But the essence of laches is not merely lapse of time. It is essential that there be also acquiescence in the alleged wrong, or lack of diligence in seeking a remedy.” The claim that the plaintiffs by reason of laches can recover nothing more than pecuniary compensation is in our opinion altogether untenable. For these and other reasons the defendants have acquired no prescriptive right to pollute the waters of the lake. The negotiations between the parties are inconsistent with the notion of adverse user for the required period. 20 R. C. L., 499. The appellants next contend that the object of the action is the recovery of damages, that they requested an assessment of permanent damages, and that in consequence the plaintiffs’ right to call for an abatement of the nuisance is lost. To sustain this proposition they cite Rhodes v. Durham, 165 N. C., 679 and Wagner v. Conover, 200 N. C., 82. These cases are not decisive of the question. In like manner with several others they apply to an award of damages for injury to land, in which the measure of damages is the impaired value of the property. Such injury is compensable in money. In the former case the Court expressed the determinative proposition as follows: “Our decisions are also in support of the proposition that where the injuries are by reason *46 of structures or conditions permanent in tbeir nature, and tbeir existence and maintenance is guaranteed or protected by the power of eminent domain or because tbe interest of tbe public therein is of sueb an exigent nature that the right of abatement at tbe instance of an individual is of necessity denied, it is open to either plaintiff or defendant to demand that permanent damages be awarded.” Tbe power of eminent domain does not imply tbe power to condemn property for unlawful purposes, such as tbe creation of private nuisances. Such an undertaking is subject in proper cases to equitable restraint. Joyce on Nuisances, 213, sec. 284. It will be observed that tbe relief prayed for includes damages, and mandatory and preventive injunctions. A right to recover damages for injury done prior to the beginning of an action is not essentially inconsistent with a subsequent injunction. “A nuisance may be abated in tbe same action in which damages are recovered.” Hale on Torts, 446. A system of drainage which discharges raw and untreated sewage into water used by a multitude of people even for a limited period cannot be regarded of such an exigent nature as to deny relief by abatement when irreparable damage is done. Tbe plaintiffs, therefore, have not lost tbeir right to insist upon an abatement of tbe alleged nuisance. Tbe appellants present a more serious question in tbeir exception to that part of tbe decree which orders a permanent mandatory injunction without a finding by a jury that tbe discharge of sewage into tbe creek pollutes tbe waters of tbe lake so as to create a nuisance. The grant of a preliminary mandatory injunction is, of course, within tbe prerogative jurisdiction of courts of equity. The injunction is generally framed so as to restrain the defendant from permitting bis previous act to operate, or to restore conditions that existed before tbe wrong complained of was committed. It is sometimes issued to preserve tbe status quo until,.upon tbe final bearing, tbe court may grant full relief; but it is usually granted with caution. Bispham’s Principles of Equity, 558. Instances of its application may be found in Telephone Company v. Telephone Company, 159 N. C., 9, in which a severed telephone connection was restored pending further proceedings; in Keys v. Alligood, 178 N. C., 16, in which tbe defendants who bad disregarded an order of court were required to restore a ditch bank to its previous place; and in Woolen Mills v. Land Company, 183 N. C., 511, in which tbe defendants who ignored orders made by a board of commissioners undertook by force to accomplish an object which they could not attain by law. In each of these cases the defendant jn’oceeded knowingly in breach of a contract or wilfully in disregard of an order of court. But in the *47 ease before us at least one of the defendants emptied sewage into the creek before the lake was built and apparently not to evade an anticipated order or judgment. Tbe defendants say that the plaintiffs “came to tbe nuisance” if a nuisance exists. If so, the plaintiffs would not for this reason be denied relief by abatement, but tbe fact would have an important bearing on tbe question whether a preliminary mandatory injunction should be issued. U. S. v. Luce, 141 Fed., 410. However, in this case such an injunction was not issued, and, it seems, was not applied for. Instead, the court embraced in its decree an order, absolute in its terms, that the defendants within twelve months should “fully, entirely, and completely abate and remove tbe aforesaid dangerous nuisance,” thereby adjudging without the aid of a jury the existence of a nuisance, which was the principal matter in dispute. In this there is error. It is incumbent upon the plaintiffs to establish both a right to be protected and an infringement of their right. Vickers v. Durham, 132 N. C., 880; Durham v. Cotton Mills, 141 N. C., 615; Little v. Lenoir, 151 N. C., 415. There is error. Tbe cause is remanded for further proceedings in accordance with this opinion. Error and remanded.