(Filed 28 May, 1913.)
1. Cities and Towns — Nuisance — Governmental Functions — Health — Repair of Streets.
Where a municipality, acting in accordance with the authority conferred by its charter, and for sanitary purposes, organizes, through its proper officers, and directs a general cleaning up of the town, and in thus acting attempts to fill up a large hole in an unimportant street, partly to get trash and rubbish out of the way, and partly for the better use of the street, and a suit is brought for damages against the city for the creation of a nuisance, alleging that garbage refuse, causing foul stench and odors, was thrown into this hole, causing sickness, etc., to the plaintiff and his family residing near: Held, the acts complained of were governmental in their character.
2. Cities and Towns — Nuisance — Governmental Functions — Damages to Property — Compensation — Damages — Constitutional Law.
The principle that a city may not be held liable in damages for its authorized acts of a governmental character which create a nuisance is subject to the limitation that neither a municipality nor other governmental agency is allowed to establish and maintain a nuisance, causing appreciable damage to a private owner, without liability to the extent of the damage done to his property; for such is regarded and dealt with as a taking or appropriation of the property, to the extent of the damage thereto, and such an interference with the rights of ownership may not be made or authorized, except on compensation first made pursuant to law.
3. Cities and Towns — Nuisance — Governmental Functions — Injury to Health — Damages.
The principle upon which a recovery may be had of a municipality for damages arising from a nuisance caused by it in the exercise of a governmental function applying only to instances that amount to a taking of private property for a public use, the damages recoverable are restricted to the diminished value of the land, and does not include damages by reason of sickness, etc., caused by such nuisance to the owner or his family, considered as a direct element thereof.
4. Cities and Towns — Nuisance — Governmental Functions — Injury to Property — Character of Ownership — Nonsuit.
The damages for injury to real property for which a municipality is liable as the cause of a nuisance created by it in the exercise of its governmental functions is not confined to the ownership of the land, for at least nominal damages are recoverable if damages are caused to the proprietary rights of a plaintiff, whether owner or renter; and where the evidence tends to show the invasion of such rights by a municipality, thus acting, a judgment of nonsuit should be disallowed.
WALKER and ALLEN, JJ., dissenting.
APPEAL by defendant from Daniels, J., at November Term, 1912, of EDGECOMBE. Action to recover damages caused by alleged nuisance.
On the trial, it was made to appear that, in 1910, plaintiff and his family were occupying a house and lot in Rocky Mount, when the town authorities, professing to act under powers conferred by the charter, etc., and for sanitary purposes, etc., organized and directed a general cleaning up of the town; that plaintiff's house was built on a street which had been laid out by a land company, the street being through an old brickyard and in which there was a hole, 15 feet long by 12 feet wide and 2 or 3 feet in depth, and the agents and employees of the town, in carrying out the purpose, and acting under instructions, threw the trash, rubbish, etc., into this hole, partly to put the same out of the way and also with a view of filling the hole, that it might the better be used for the streets. The testimony on part of plaintiff tended to show that, in filling this hole, the employees threw garbage, refuse, etc., and caused foul stench and odors, resulting in great annoyance and inconvenience to plaintiff and his family and rendering several of them sick with fever, causing outlay for expense, loss of time, etc.
There was evidence on part of defendant tending to show that no nuisance had been created and that there were other sources of infection on or near the premises entirely sufficient to account for the alleged sickness and much more likely to cause it.
On issues submitted, the jury rendered the following verdict:
1. Did the defendant maintain or cause to exist on Holly Street a public nuisance by reason of filling up the hole in front of plaintiff's house, as alleged in the complaint? Answer: Yes.
2. Was the plaintiff damaged thereby? Answer: Yes.
3. If so, what damage did he sustain? Answer: $890.
Judgment on the verdict for plaintiff, and defendant excepted and appealed, assigning for error:
1. The refusal of the court to nonsuit plaintiff.
2. Allowing as a direct element of damages the sickness in plaintiff's family and costs incident to same, etc.
J. W. Keel and W. O. Howard for plaintiff.
T. T. Thorne and L. V. Bassett for defendant.
The charter of the city of Rocky Mount, Private Laws 1907, ch. 209, sec. 21, provides, in general terms, that the board of aldermen shall have power to make proper regulations for the conservation of the public health, and may create and appoint a board of health to exercise and carry out such powers under the supervision and control of the first mentioned board. The acts complained of were chiefly in the exercise or attempted exercise of the powers there conferred, and should be considered governmental in character. Insurance Co. v. Keeseville, 148 N.Y. 46; Love v. Atlanta, 95 Ga. 129; 1 Abbott on Municipal Corporations, p. 304, sec. 147. This being the correct position, our decisions hold the general rule to be, and they are in accord with well considered authority elsewhere, that "unless a right of action is given by statute, (412) municipal corporations may not be held civilly liable to individuals for failure to perform or neglect in performing duties governmental in their nature, including generally all duties existent or imposed upon them by law for the public benefit." Harrington v. Greenville, 159 N.C. 634, citing and referring, among other cases, to Hull v. Roxboro, 142 N.C. 453; Peterson v. Wilmington, 130 N.C. 76; McIlhenny v. Wilmington, 127 N.C. 146; Moffitt v. Asheville, 103 N.C. 237; see, also, Hill v. Boston, 122 Mass. 344; Commonwealth v. Kidder, 107 Mass. 88; Smith's Modern Law on Municipal Corporations, sec. 780.
This general principle is subject to the limitation that neither a municipal corporation nor other governmental agency is allowed to establish and maintain a nuisance, causing appreciable damage to the property of a private owner, without being liable for it. To the extent of the damage done to such property, it is regarded and dealt with as a taking or appropriation of the property, and it is well understood that such an interference with the rights of ownership may not be made or authorized except on compensation first made pursuant to the law of the land. Little v. Lenoir, 151 N.C. 415; Nevins v. Peoria, 41 Ill. 502; Winchell v. Waukesha, 110 Wis. 101; Eaton v. R. R., 51 N. H., 504; Bohan v. Port Jervis Co., 122 N.Y. 18; Mining Co. v. Joplin, 124 Mo., 129; Fertilizer Co. v. Malone, 73 Md. 268; Wharf Co. v. Portland, 67 Me. 46; Village of Dwight v. Hayes, 150 Ill. 273; Langley v. Augusta, 118 Ga. 590; 3 Abbott Municipal Corporations, sec. 961; 1 Lewis Eminent Domain (3 Ed.), sec. 65.
In affording redress for wrongs of this character, injuries caused by a nuisance wrongfully created in the exercise of governmental functions, our decisions hold as the correct deduction from the above principle that the damages are confined to the diminished value of the property affected, and that sickness attributable to such nuisance may not be properly considered as a direct element of damage ( Metz v. Asheville, 150 N.C. 748; Williams v. Greenville, 130 N.C. 93); a position which finds support in decisions of other courts of (413) recognized authority. Hughes v. Auburn, 161 N.Y. 96; Folk v. Milwaukee, 108 Wis. 359. The evidence, or some of it, may be relevant on the question of the diminished value of the property, and might, in given instances, present a case for injunctive relief, but may not be made the basis for a direct estimate and award of uncertain and unrestrained damages. Speaking to some of the underlying reasons for the position, O'Brien, J., delivering the opinion in the Hughes case, among other things, said: "If an individual, injured by disease produced by the acts or neglect of a city, such as are stated in the complaint, can recover damages at all, it must be upon some principle of the common law; and had it been suggested half a century ago that such a principle existed, the assertion would have been received with surprise. In the form in which this case comes here, there is ample room to urge in argument elements of individual hardship well calculated to disturb the mind and divert it from the questions of law that underlie the action. On the principle that there can be no wrong without a remedy, courts are sometimes astute to discover grounds for relief in cases of this character, that, when applied as general principles to like cases, are found to be exceedingly inconvenient, if not untenable, and, hence, very frequently have to be distinguished, modified, or entirely abandoned. The principle upon which the judgment in this case rests is that an individual who has suffered from disease, caused by the neglect of a city to observe sanitary laws with reference to its sewer system, may recover damages from the city. This principle, if sanctioned and applied generally to all cases coming within its scope, cannot fail to produce evils much more intolerable than any that can possibly arise from such acts of omission or commission as the plaintiff states as the basis of this action. It must necessarily become the prolific parent of a vast mass of litigation which the municipality can respond to only by taxation, imposed alike upon the innocent and the guilty." And further: "In the construction and maintenance of a sewer or drainage system, a municipal corporation exercises a part of the governmental powers of the State for the customary local convenience and benefit of all the people, and in the exercise of these discretionary functions the municipality (414) cannot be required to respond in damages to individuals for injury to health, resulting either from omissions to act or the mode of exercising the power conferred on it for public purposes to be used at discretion for the public good. I have attempted to state some of the reasons that underlie this principle and their application to this case, with the evil results that must follow any departure from it."
Applying the doctrine as it obtains with us, we must hold that there was error in allowing the jury to consider the testimony as to sickness of various members of the plaintiff's family as a direct element in estimating the damages. The motion to nonsuit was properly overruled, because there were facts in evidence tending to show the existence of an actionable nuisance, causing damage to the proprietary rights of the plaintiff and entitling him in any event to a recovery for nominal damages. It does not appear what was the nature of plaintiff's tenure, whether as owner or otherwise, but, whether as owner or renter, he is entitled to recover for wrongful injury, causing damage to his proprietary rights. Smith v. Sedalia, 182 Mo., 1; Grantham v. Gibson, 41 Wn. 125.
Downs v. High Point, 115 N.C. 182, chiefly concerned the framing and sufficiency of the issues, and the mind of the Court was not directly addressed to the question presented here. To the extent, however, that the Downs case sanctions the principle that damages for specific cases of sickness can be recovered at the suit of an individual citizen by reason of an injury occurring from the exercise of governmental functions, the case has been disapproved both in Metz v. Asheville, supra, and Williams v. Greenville, supra, and is no longer authoritative on that position.
Durham v. Cotton Mills, 141 N.C. 615, and Vicker v. Durham, 132 N.C. 880, are addressed to restraining the discharge of sewage by reason of apprehended injury, and the amount of damages for injuries committed and the proper rules which should prevail on such an issue were not directly presented or determined.
For the error indicated, defendant is entitled to a