TOWN OF ROLESVILLE
v.
Jesse J. PERRY and Mary Catherine Perry, his wife.
No. 7310SC498.
Court of Appeals of North Carolina.
May 1, 1974.*721 Harris & Harris by Jane P. Harris, Wake Forest, for plaintiff-appellant.
Edward Paschal, Wake Forest, for defendant-appellees.
PARKER, Judge.
Motion for a directed verdict is appropriate only in a jury trial. This case having been tried without a jury, the proper motion by which to test the sufficiency of plaintiff's evidence to establish a right to relief was a motion for involuntary dismissal under Rule 41(b). Bryant v. Kelly, 10 N.C.App. 208, 178 S.E.2d 113, rev'd on other grounds in 279 N.C. 123, 181 S.E.2d 438. We will treat the defendants' motion for a directed verdict as a motion for an involuntary dismissal under Rule 41(b). Mills v. Koscot Interplanetary, 13 N.C. App. 681, 187 S.E.2d 372.
"In ruling on a motion to dismiss under Rule 41(b), applicable only `in an action tried by the court without a jury', the court must pass upon whether the evidence is sufficient as a matter of law to permit a recovery; and, if so, must pass upon the weight and credibility of the evidence upon which the plaintiff must rely in order to recover." Knitting, Inc. v. Yarn Co., 11 N.C.App. 162, 180 S.E.2d 611.
Plaintiff does not rest its claim for an injunction to prohibit defendants from erecting an automotive repair garage on their lot upon the provisions of any valid zoning ordinance or upon an ordinance prohibiting operation of all such garages within the Town limits. In its complaint plaintiff did refer to the ordinance adopted by its Town Board on 4 December 1972 which purported to prohibit any person from commencing or proceeding with construction of any building within the Town *722 without first obtaining from the Town Board a written permit which contained a finding by the Board that the proposed construction or use to be made of the building when completed "will not be detrimental, dangerous, or prejudicial to the public health and safety." This ordinance, by its terms, defined as a public nuisance any construction or use of property in violation of the ordinance. It is manifest, however, that mere enactment of the ordinance and refusal to issue a permit under it cannot give the Town Board lawful authority to make a public nuisance out of what in fact is not one, and no such arbitrary power is claimed by appellant on this appeal. Further, no contention has been made that the building which defendants propose to erect on their lot would in itself be in any way unsafe or "detrimental, dangerous, or prejudicial to the public health and safety." Rather, plaintiff rests its case for an injunction entirely upon its claim that the use which defendants propose to make of their building would constitute a public nuisance, in that such use would entail the placing on defendants' lot of toxic substances which could be carried by drainage or seepage through rock crevices into the Town well. The question presented by this appeal, therefore, is whether plaintiff's evidence was sufficient to establish that the use which defendants propose to make of their lot would constitute a public nuisance in the respects claimed so as to entitle plaintiff to the requested injunction. We agree with the trial judge that it was not.
The evidence showed the following: Plaintiff's Town well is about 160 feet north from the north line of defendants' lot. The lot is separated from the well by a small stream, which flows between the lot and the well and in a northwest direction, defendants' lot being approximately 40 to 50 feet southwest of the stream at its closest point, and the well being northeast of the stream. Proceeding northwardly from defendants' lot, the ground slopes downward until it reaches the banks of the stream, and then on the other side of the stream it slopes upward to the well. Plaintiff's witness Berry, a ground water geologist with the State Department of Water and Air Resources, who was allowed by the court to testify as an expert in geology and ground water, testified that the soil at this location varies from two to five feet deep, below which there is a substratum of weathered granite until a total depth of nine or ten feet, below which "you will get into solid rock with very few fractures." This witness testified that the fractures in the granite slope in a northwest direction, going down into the earth, and sloping in the same direction that the little stream flows. In his opinion, if any oil or other substances ran into the stream, "it would have a normal tendency to go on with the stream . . . instead of seeping into the rocks." This witness also testified that if solvents, spent oil, gasoline and other materials used in an automotive garage operation were in a "sufficient amount," by which the witness meant "enough to saturate the soil," and "if it were to saturate the soil and go into the rock crevices, it would probably eventually pollute the water table in the area, and this would be drawn toward the well during times of heavy pumping." There was no evidence that defendants' contemplated use of their property would ever entail the discharge or spilling upon the land of such "solvents, spent oil, gasoline and other materials" in quantities sufficient to saturate the soil, or that if it did, that such materials would then "go into the rock crevices."
In the judgment allowing defendants' motion and dismissing plaintiff's action, the trial judge made findings of fact, including the following:
"That the plaintiff has not offered competent evidence to substantiate the allegations of the complaint that the water would be polluted by the operation of an automotive garage on the premises and that the same would be a nuisance."
We agree. The burden was on the plaintiff to introduce evidence to establish a *723 right to the requested injunctive relief. At most, plaintiff's evidence showed only a remote possibility that under special circumstances, which the evidence failed to show would ever exist and which in all probability never will exist, substances from defendants' lot might in times of heavy pumping be drawn toward plaintiff's well.
Plaintiff's evidence failed to show any substantial probability that the contemplated use by the defendants of their property would constitute a public nuisance. The judgment appealed from is
Affirmed.
BRITT and MORRIS, JJ., concur.