Wharton v. Empire Manufacturing Co.

146 S.E. 867, 196 N.C. 719, 1929 N.C. LEXIS 85

• Court: Supreme Court of North Carolina
• Decided: March 13, 1929
• Status: Published

Opinion

ClaricsoN, J".

In some cases it has been held that when one erects a substantial building or other structure of a permanent character on his own land, which wrongfully invades the rights of adjoining property, wbicb creates a nuisance or trespass, the injured party may accept or ratify the feature of permanence and sue at once for the entire damage, and in cases strictly of private ownership, the weight of authority seems to be that separate actions must be brought for the continuing or recurrent wrong and plaintiff can only recover damages to the time the action is commenced. In this jurisdiction, however, to the time of the trial. Webb v. Chemical Co., 170 N. C., 662; Morrow v. Mills, 181 N. C., 423; Mitchell v. Ahoskie, 190 N. C., 235; Langley v. Hosiery Mills, 194 N. C., 644; Winchester v. Byers, ante, 383; Peacock v. Greensboro, ante, 416.

In the Winchester case, supra, at p. 385, speaking to the subject, it is said: “The distinction is readily observed, ordinarily private property cannot be taken for private purposes without the consent of the owner. For public purposes it can be taken only after payment of just compensation.”

In the Peacock case, supra, at p. 417, it is said: “As there has been no appropriation of his land for permanent purposes, he is not entitled to recover permanent damages.”

With the law thus stated, we are of the opinion that the exceptions and assignments of error made by defendant to the submission of the fourth issue as to permanent damage must be sustained, and also to the refusal of the court below to sign the judgment tendered by defendant.

The plaintiff must pay the cost on appeal to this Court. In the-judgment below there is

Error.