Black v. Town of Bessemer City

148 S.E. 29, 197 N.C. 195, 1929 N.C. LEXIS 187

• Court: Supreme Court of North Carolina
• Decided: May 8, 1929
• Status: Published

Opinion

Pee Oueiam.

Tbe plaintiff insisted that bis property bad been damaged not only by the increase of the volume of water resulting from the diversion of water from Long Creek by the city, but also by reason of noxious odors and gases wbicb invaded the atmosphere so that pollution of botb water and air resulted in serious injury to bis proprietary rights. Consequently, the plaintiff insisted that the pollution of the stream and of the air amounted in law to a taking of bis property, and, therefore, the trial judge should have instructed the jury to award nominal damages at least. This position would be sound except for the provision of C. S., 2805, wbicb expressly confers upon municipalities the right to “construct, establish, maintain and operate” sewerage systems, and in order to make such power effective the right of eminent domain is conferred. Hines v. Rocky Mount, 162 N. C., 409, 78 S. E., 410; Rhodes v. Durham, 165 N. C., 679, 81 S. E., 938; Smith v. Morganton, 187 N. C., 801, 123 S. E., 88.

Tbe plaintiff further insists that the issue submitted by the trial judge and answered by the jury excluded the element of damages claimed by him, arising from the pollution of the air, by confining bis recovery exclusively, to the aspect of diversion of water. It appears, however, from the record that this element of injury was submitted to the jury in these words: “It is proper for you, however, to consider evidence of offensive odors, evidence of the presence of mosquitoes and flies, evidence of pollution of the air made there by offensive odors.”

A close scrutiny of the record does not disclose error of law, and the judgment rendered is

Affirmed.