PHILLIPS
v.
CHESSON et al.
No. 164.
Supreme Court of North Carolina.
March 22, 1950.*346 Hamrick & Hamrick, Sidney L. Truesdale, Rutherfordton, for plaintiff, appellee.
Jones & Davis, Forest City, for defendants, appellants.
SEAWELL, Justice.
With respect to surface water, the duties of owners of adjoining lands respectively on a different level are reciprocal and complementary. The lower land is servient to that on a higher level in the sense that it must receive the natural flow of surface water from the higher land; and the servient owner must dispose of it as best he can without in turn becoming an offender.
Here we are concerned with the duties of the owners or occupants of the land on the higher level. Such owners or occupants cannot divert the surface water or interfere with its natural flow by artificial obstruction or device so as to injure the premises of the servient owner without incurring actionable liability. Winchester v. Byers, 196 N.C. 383, 145 S.E. 774; Porter v. Durham, 74 N.C. 767, 779; Brown v. Southern R. Co., 165 N.C. 392, 395, 396, 81 S.E. 450.
The question whether more water or less water is caused to flow on to the lower landwhich may be a factor bearing on liability,is often by no means the most important. The manner of its collection and release, the intermittent increase in volume, and destructive force, its direction to a more vulnerable point of invasion, may often become important. Porter v. Durham, supra.
1. The evidence taken in the light most favorable to the plaintiff tends to show an infraction of legal duties on the part of the defendants in the diversion of surface waters on their own premises, resulting in damage to the servient owner and is legally sufficient to survive the demurrer.
2. The defendant challenges the validity of the trial on the ground that the court erred in the important matter of instructing the jury on the measure of damages. The objection is that he instructed them without any qualification that the proper measure of the damages was the difference in the market value of the land immediately before the injury and immediately afterwards. This the appellant contends is not applicable to a case in which temporary damages alone are demanded and allowable.
On the record the plaintiff's suit must be regarded and treated as an action for the recovery of temporary damages, and only damages of that nature may be awarded.
In his complaint he describes the damage as "continuing" and "recurrent," and the evidence shows it to be typically of that character. (No distinction is made in the law between a continuing trespass which resolves into a nuisance, and other kinds of nuisance with respect to the legal consequences.)
The impermanent nature of the condition from which the intermittent or recurrent damage arises is recognized in the constitution of the case, since the plaintiff has concomitantly with his prayer for damages invoked injunctive relief for its abatement. The cause of the recurring damage, then, is one which may be removed by the voluntary action of the defendant, or abated by court action, if that should be adjudged appropriate. Plaintiff's remedy in a proceeding of this sort, between private parties, is by successive suits brought from time to time against the author of the nuisance as long as the noxious condition is maintained, in which he may recover past damages down to the time of the trial; Ridley v. Seaboard R. R. Co., 118 N.C. 996, 24 S.E. 730, 32 L.R.A. 708, not including subjects of prior adjudication. In this way it has been said (Ridley *347 v. Seaboard R. R. Co., supra), the defendant's willingness to abate or remove the cause of damage may be stimulated when repeatedly mulcted in damages by reason of its continued maintenance. Winchester v. Byers, 196 N.C. 383, 145 S.E. 774; Eller v. City of Greensboro, 190 N.C. 715, 720, 130 S.E. 851; Morrow v. Florence Mills, 181 N.C. 423, 107 S.E. 445; Webb v. Virginia-Carolina Chemical Co., 170 N.C. 662, 87 S.E. 633, L.R.A.1916E, 971; Barcliff v. Norfolk Southern R. Co., 168 N.C. 268, 84 S.E. 290; Brown v. Southern R. Co., supra; Ridley v. Seaboard R. R. Co., supra; Adams v. Durham & N. R. Co., 110 N.C. 325, 14 S.E. 857.
In contrast, permanent damages, as the term is used in the law, are given in one award of entire damages on the theory that all damage flows from the original injury, recognized as permanent in character; and such award includes compensation for all damage, however intermittent, or recurring, past, present and prospective, naturally flowing from and proximately caused by the original injury. Porter v. Aberdeen & R. F. R. R., 148 N.C. 563, 62 S.E. 741; Barclift v. Norfolk Southern R. Co., 175 N.C. 114, 116, 95 S.E. 39; McMahan v. Black Mountain R. Co., 170 N.C. 456, 458, 87 S.E. 237. Following an award of that sort the defendant author of the injury has in effect acquired an easement to continue the offending condition without further liability. McCormick on Damages, p. 514.
When the action is between private persons, as it is here, the plaintiff in such a case cannot be required to thus consolidate all his demands in one action and ask for or receive permanent damages. Where private ownership is involved only by consent of parties may an issue of permanent damages be submitted. Morrow v. Florence Mills, supra; Webb v. Virginia-Carolina Chemical Co., supra.
A different rule as to the propriety or necessity of awarding permanent damages is applied where the defendant is a quasi public utility, or agency having a right of eminent domain, or power of condemnation, when the subject property right falls within the purview of that power. In that case either the plaintiff or the defendant may demand that permanent damages instead of temporary damages be made the subject of inquiry, (Mitchell v. Town of Ahoskie, 190 N.C. 235, 129 S.E. 626; Eller v. City of Greensboro, 190 N.C. 715, 720, 130 S.E. 851), with the consequence, as we have observed, that upon recovery of damages by plaintiff the defendant gets an easement, or at least the plaintiff is estopped from further action respecting the subject of the award.
3. From the foregoing the force of defendant's challenge to the diminution in market value as a rule to be applied to the measurement of damages in this case becomes clear.
The objective of any proceeding to rectify a wrongful injury resulting in loss is to restore the victim to his original condition, to give back to him that which was lost as far as it may be done by compensation in money. 25 C.J.S., Damages, § 3.
The courts, always moving toward rules of general application to frequently recurring situations, have evolved many rules which achieve the merit of convenient application and easy provability at the expense of a nearer approach to reality in the particular case. Amongst them is the rule, sometimes called ordinary, that the measure of damages recoverable for injury to property is the difference between the market value immediately before the injury and the market value immediately afterwards. This rule, which can be an approximation to truth in a limited number of cases, is often too remote from the factual pattern of the injury and its compensable items to reflect the fairness and justice which the administration of the law presupposes. For that reason it is applied with caution, and often with modifications designed to relax its rigidity and fit it to the facts of the particular case. Conceding the soundness and applicability of the diminution in value of the premises as the measure of permanent damages where all proximate damage arising from the original injury, past, present and prospective is considered, the application of the rule to a case where temporary *348 damage only is involved has not generally met with approval.
The great weight of authority where the point has been squarely presented sine nubibus clearly rejects the diminution of market value as neither accurate, convenient nor just where, as here, temporary damages only will be allowed, where the cause of the injury is impermanent in the sense that it may be removed by the offender voluntarily or abated by equitable proceedings which the plaintiff has here invoked. "As a general rule the diminished market value of the property will not be used as a measure of damages for a temporary injury to real estate, but only when the injury to the realty is permanent." 15 Am.Jur., Damages, sec. 110; 25 C.J.S., Damages, § 84, p. 605; McCormick, Damages, loc. cit., supra; City of Norwood v. Sheen, 126 Ohio St. 482, 186 N.E. 102, 87 A.L.R. Annotation, 1384, Div. III; Williams v. State, 106 Misc. 19, 175 N.Y.S. 560; Noakes v. State, 104 Misc. 276, 175 N.Y.S. 557; Ryder v. Town of Lexington, 303 Mass. 281, 21 N.E.2d 382, 388; Adams v. Durham & N. R. Co., supra, and cases cited. The court was in error in applying the rule as given in the instruction.
Various other rules are applied, such as diminished rental value, reasonable costs of replacement or repair, or restoring the property to its original condition with added damages for other incidental items of loss, as to the application of which in the instant case it is not necessary for us now to inquire.
Cases where the injury is completed or by a single act becomes a fait accompli and which do not involve a continuing wrong or intermittent or recurring damage, (West Construction Co. v. Atlantic Coast Line R. Co., 185 N.C. 43, 116 S.E. 3; DeLaney v. Henderson-Gilmore Co., 192 N.C. 647, 651, 652, 135 S.E. 791; Broadhurst v. Blythe Bros. Co., 220 N.C. 464, 17 S.E.2d 646), make no challenge to the foregoing statement of the rule. We do not find it profitable to inquire whether the rule applied by the court was favorable to the defendant and, therefore, tended to cure the error. It would lead into dialectic discussion, and not to a ready answer.
For the error noted the defendant is entitled to a new trial. It is so ordered. Venire de novo.
Error. New trial.