Town of Smithfield v. City of Raleigh

178 S.E. 114, 207 N.C. 597, 1935 N.C. LEXIS 214

• Court: Supreme Court of North Carolina
• Decided: January 28, 1935
• Status: Published

Opinion

BbogdieN, J.

Does C. S., 7125, impose upon the trial judge the mandatory duty of enjoining a municipality from discharging raw sewage into a stream from which another municipality takes its water supply ?

There were no exceptions taken to the findings of fact made by the trial judge. The pertinent findings were: (a) That the discharge of raw sewage into Neuse River, in view of the facts and circumstances, had produced no injury to the plaintiff, and there were no facts tending to sbow immediate menace to the inhabitants of the plaintiff municipality; (b) that the defendant is not in a financial condition to immediately install purification plants necessary to comply with the provision of the statute.

Indeed, it seems that the trial judge subjected the question to “trial by water,” because the record discloses that his Honor “had drunk of the water, bathed in it, and suffered no ill effects.” The ancient mode of “trial by water” was aforetime deemed efficacious in determining the guilt or innocence of witches, and by applying the practices of the ancient law the distinguished jurist has found the waters of Neuse River not guilty.

The principal cases in this jurisdiction construing C. S., 7125, are: Durham v. Cotton Mills, 141 N. C., 615, 54 S. E., 453; Shelby v. Power Co., 155 N. C., 196, 71 S. E., 218; Board of Health v. Commissioners, 173 N. C., 250, 91 S. E., 1019. These cases proceed upon the theory that a violation of C. S., 7125, authorizes the exercise of the restraining power of a court of equity, irrespective of the fact that no injury has actually occurred. It is the threat or potentiality of menace rather than the accomplished fact thereof that warrants the interposition of equitable power. Notwithstanding, common sense, is older than the common law, statutory law, or equity, and this saving grace of human experience must be reckoned with in determining the application of technical rules of behavior. If the trial judge had granted the prayer of the plaintiffs and had immediately restrained the city of Raleigh from using its sewerage system and plugged the entire system with the force of law, untold misery and suffering would be entailed upon a population of over 40,000 people. The statute recognizes such practical exigencies of social life, and declares that “the continued flow and discharge of such sewage may be enjoined upon application of any person.” The words “may be enjoined” clearly demonstrate that surrounding facts and circumstances must be considered in entering a peremptory order of the kind sought in this action. The cases referred to all disclose that a reasonable time was accorded for complying with the statute.

Manifestly, Raleigh must comply with C. S., 7125. This statute pronounces the public policy of the State, against which, temporizing and unreasonable delay will not avail. This idea was doubtless in the mind of the trial judge because it is particularly specified in the judgment that the same “shall not be taken hereafter, or held to be an estoppel against the plaintiffs, in case another action is brought for the same cause,” etc.

Affirmed.