Bynum v. Onslow County

Parker, J. The parties have entered into certain stipulations, including a stipulation that plaintiff is “trying this case on the theory of taking and not upon the theory of negligence.” However, in ruling upon a demurrer to a pleading, the court may not consider matters extrinsic to the pleading, even though the parties stipulate and agree that such matters may be considered. Lane v. Griswold, 273 N.C. 1, 159 S.E. 2d 338. We therefore first consider the sufficiency of plaintiff’s complaint to allege a cause of action based upon negligence. The only allegation of negligence contained in the complaint is in paragraph 8, as follows: “. . . that the defendant, through its agents and employees, negligently operated the fog machine in a manner that the wind carried the fog deep into this plaintiff’s fields causing the damage hereinafter alleged.” This is a bare conclusion of law. No facts are alleged setting forth in what manner the defendant’s agents and employees were 'negligent in operation of the fog machine. “In an action or defense based upon negligence, it is not sufficient to allege the mere happening of the event through the negligence of the party and calling it negligence. The facts constituting the negligence should be alleged in par [354] ticular.” 1 McIntosh, N. C. Practice 2d, § 989. Quite apart from the defense of governmental immunity, the complaint fails to state any facts sufficient to constitute a cause of action based upon negligence. Plaintiff contends that his complaint states a good cause of action on the theory that he has alleged facts which show a taking of his property by the defendant County for which he has a constitutional right to be compensated. In his brief he recognizes that the defendant County had the right to use DDT spray in an effort to control mosquitoes within its boundaries and that this is a proper governmental function. He contends that when the County in exercise of that function performs acts which damaged his property or reduced its value, there occurred an “inverse condemnation” of his property for which he had a right to seek redress in the courts. In support of this contention he cites the following language from Charlotte v. 8watt, 263 N.C. 656, 140 S.E. 2d 341: “The legal doctrine indicated by the term, ‘inverse condemnation,’ is well established in this jurisdiction. Where private property is taken for a public purpose by a municipality or other agency having the power of eminent domain under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor.” Examples of “inverse condemnation” actions in which the property owner was held to be entitled to compensation for the taking of his property may be found in Portsmouth Harbor Land and Hotel Co. v. United States, 260 U.S. 327, 43 S. Ct. 135, 67 L. ed. 287 (erection and maintenance of a United States fort and a battery thereon and firing guns over petitioner’s land); United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. ed. 1206 (frequent low level flights over plaintiff’s land of U. S. government planes engaged in landing at and leaving a government airport); McKinney v. High Point, 237 N.C. 66, 74 S.E. 2d 440 (erection and maintenance of a City water storage tank on property nearby to plaintiff’s residence); Eller v. Board of Education, 242 N.C. 584, 89 S.E. 2d 144 (construction and maintenance on school property of a septic tank which caused sewage to seep onto plaintiff’s adjacent land); Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 131 S.E. 2d 900 (discharge óf numerous explosions upon rock stratum in close proximity to plaintiff’s dwelling house incident to construction of a City sewerage system). [355] In all of these cases the acts of the sovereign in exercise of its governmental powers resulted in the imposing of some more or less permanent servitude upon plaintiffs’ property sufficient for the court to find that there had been a taking of a property interest from the citizen by the sovereign. The acquisition by the sovereign of such an interest, and not the mere incidental damage to the citizen’s property by the tortious acts of sovereign’s agents, is required before there is a compensable taking of property. Admittedly the line between the two types of situations may not always be precise. As was said by the court in Harris v. United States, 205 F. 2d 765: “A compensable taking under the federal constitution, like the phrase ‘just compensation’ is not capable of precise definition. And the adjudicated cases have steered a rather uneven course between a tortious act for which the sovereign is immune except insofar as it has expressly consented to be liable, and those acts amounting to an imposition of a servitude for which the constitution implies a promise to justly compensate. Generally it is held that a single destructive act without a deliberate intent to assert or acquire a proprietary interest or dominion is tortious and within the rule of immunity.” We think that the principles expressed in the Hams case are controlling here. In that case, as in the case before us, plaintiff’s crops were damaged by the drifting onto his lands of chemicals being sprayed by the government’s agents in the exercise of proper governmental functions. The court affirmed the District Court’s holding that inasmuch as there had been only one spraying operation in the area and there was no anticipated spraying of such nature in the foreseeable future, the act complained of resulted in no taking of plaintiff’s property such as to require payment of compensation. The court said: “But we do not understand that a single isolated and unintentional act of the United States resulting in damage or destruction of personal property amounts to a taking in a constitutional sense. It is, we think, rather a tortious act for which the government is only consensually liable. “We agree with the trial court that the single act of the spraying operation fell short of a taking within the meaning of the Fifth Amendment. If the result leaves a wrong by the sovereign without a judicial remedy, the deficiency lies in the limited scope of the government’s tort liability. It does not justify the extension of the contractual liability of the government beyond its intended scope.” [356] In cases involving similar facts other courts have also denied recovery. Columbia Basin Orchard v. United States, 132 F. Supp. 707; St. Francis Drainage District v. Austin, 227 Ark. 167, 296 S.W. 2d 668; Neff v. Imperial Irrigation District, 142 Cal. App. 2d 755, 299 P. 2d 359; Angelle v. State, 212 La. 1069, 34 So. 2d 321. The case of Rhyne v. Mount Holly, 251 N.C. 521, 112 S.E. 2d 40, relied on by the plaintiff, is distinguishable from the case before us and is not here controlling. In that case the damages to the plaintiff resulted from a direct physical invasion of his land by the City’s agents, who brought a bulldozer thereon and scraped away substantially all plants growing thereon, including a large number of oak trees. The court, at page 527, said: “The test of liability is whether, notwithstanding its acts are governmental in nature and for a lawful public purpose, the municipality’s acts amount to a partial taking of private property. If so, just compensation must be paid. Where, as here, the acts complained of consist of the physical destruction of trees on plaintiff’s property, there can be no doubt but that a partial taking of plaintiff’s property then occurred.” In the case before us there was no entry upon plaintiff’s land and no taking of physical control of his property. The judgment of the trial court is affirmed with leave to the plaintiff to amend his complaint within 30 days after the certification of this opinion if he feels so advised. Affirmed. Campbell and Brock, JJ., concur.