Carl F. SPAUGH, Sr., and wife, Opal Spaugh,
v.
CITY OF WINSTON-SALEM.
No. 387.
Supreme Court of North Carolina.
November 19, 1958.*612 Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendant, appellant.
Deal, Hutchins & Minor, Winston-Salem, for plaintiffs, appellees.
BOBBITT, Justice.
Defendant's only assignments of error are based on its exceptions to the overruling of its motions for judgment of nonsuit. The only motion to be considered is that made by defendant at the close of all the evidence. G.S. § 1-183; Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E.2d 541.
While the record is silent as to the ground(s) on which defendant based its motion for judgment of nonsuit when it was considered and overruled by Judge Gwyn, defendant asserts here a fatal variance between plaintiffs' allegata and probata as the ground on which its motion should have been allowed, citing Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786, and similar cases. The rule is well established that judgment of nonsuit is proper when there is a fatal variance between a plaintiff's allegata and probata. Whether the variance is to be deemed material (fatal) must be resolved in the light of the facts of each case. G.S. § 1-168; Dennis v. Albemarle, 242 N.C. 263, 87 S.E.2d 561.
The gist of defendant's argument is that plaintiffs alleged a cause of action to recover permanent damages based on "a permanent and continuing and recurring nuisance upon the plaintiff's lands"; and that, since plaintiffs did not seek or allege damages of a temporary nature, the court erred in overruling defendant's motion for nonsuit.
To consider defendant's position in proper perspective, it should be noted that defendant did not bring forward any exception relating to what transpired prior or subsequent to the overruling of its motion for judgment of nonsuit. Whether there was a fatal variance between plaintiffs' allegata and probata was determinable at the conclusion of all the evidence. Errors, if any, occurring thereafter, have no bearing upon the correctness of the court's ruling on defendant's motion for judgment of nonsuit.
As stated by Barnhill, J. (later C. J.), in Clinard v. Kernersville, 215 N.C. 745, 748, 3 S.E.2d 267, 270: "An action by a landowner against a municipality or corporation possessing the right of condemnation for the maintenance of a continuing nuisance which adversely affects the value of plaintiffs' land is, by a demand for permanent damage either by the plaintiff or by the defendant, converted into an action in the nature of a condemnation proceedings for the assessment of damages for the value of the land or easement taken. The assessment of permanent damages for the maintenance of a continuing nuisance as here alleged and the payment of such damages vests the defendant with an easement entitling it to a continued use of the property in the same manner." Whether permanent damages may be awarded does not depend upon the consent of both parties *613 as in a similar action against a private manufacturing corporation. Aydlett v. Carolina By-Products Co., 215 N.C. 700, 2 S.E.2d 881.
A cause of action consists of the facts alleged in the complaint. G.S. § 1-122; Lassiter v. Norfolk & C. R. R., 136 N.C. 89, 48 S.E. 642. The plaintiffs alleged damages to their lands on account of the pollution of Salem Creek by defendant. True, plaintiffs alleged and sought to recover permanent damages and offered much evidence in support of these allegations. (Note: Defendant abandoned all its exceptions to the admission of such evidence.) Nothing else appearing, plaintiffs were entitled to recover permanent damages for the partial taking of their lands, vesting in defendant a permanent easement in accordance with legal principles declared and applied in Clinard v. Kernersville, supra; Id., 217 N.C. 686, 9 S.E.2d 381, and in Eller v. Board of Education, 242 N.C. 584, 89 S.E.2d 144; Id., 244 N.C. 529, 94 S.E.2d 478.
We need not determine whether plaintiffs, when all the evidence is considered, were entitled to have submitted an issue as to permanent damages. Suffice to say, there was no variance between plaintiffs' allegata and probata.
Defendant, in support of its allegations, offered evidence tending to show that the damage, if any, to plaintiffs' lands caused by the pollution of Salem Creek would be abated upon completion of its new and modern sewage treatment plant. The court, (not the jury,) accepted such assurances, and in reliance thereon limited plaintiffs' recovery to temporary damages. Nothing in the record suggests that this was done at the instance of plaintiffs or that plaintiffs at any time changed their theory of the action. Rather, the clear implication is that the court adopted defendant's theory of the action and submitted issues appropriate thereto. Under such circumstances, defendant may not, after trial, defeat plaintiffs' right to recover on the ground that they did not specifically allege and seek to recover temporary damages.
Whether plaintiffs were entitled to recover permanent damages or temporary damages, the basis of recovery was the damage to their lands on account of the pollution of Salem Creek. When the court, under the circumstances here disclosed, limited the extent of plaintiffs' recovery to temporary damages, it was not inappropriate for the court to proceed on the theory that plaintiffs' allegations of damages resulting from a permanent taking embraced a lesser claim for damages if plaintiffs were restricted by the court to the temporary damages they sustained during a limited period. Virginia Ry. & Power Co. v. Ferebee, 115 Va. 289, 78 S.E. 556.
City of Austin v. Bush, Tex.Civ.App., Austin, 260 S.W. 300, and Ehlert v. Galveston H. & S. A. Ry. Co., Tex.Civ.App. Galveston, 274 S.W. 172, cited by defendant, contain statements to the effect that a landowner is not entitled to have his case submitted to the jury on an issue as to temporary damages when his allegations assert permanent damages and nothing else. Since the cited cases are not controlling in this jurisdiction, we need not explore the factual distinctions between them and the case at hand. In City of Austin v. Bush, supra, these facts are noted: The landowner alleged permanent damages on account of a nuisance caused by the operation of the city's sewage disposal plant. The court submitted issues relating solely to permanent damages. The city, under its general denial, had offered evidence tending to show that it had abated the nuisance and that the matters of which the landowner complained were occasioned by carelessness of its employees or by accident and were therefore temporary in character. The error for which a new trial was awarded was the court's failure to submit to the jury an issue as to whether the alleged nuisance was of a permanent or temporary character.
*614 True, as defendant contends, citing Oates v. Algodon Mfg. Co., 217 N.C. 488, 8 S.E.2d 605, in actions to recover temporary damages the rule as to the measure of damages is different from that applicable in actions to recover permanent damages. But plaintiffs, in addition to their evidence relating to permanent damages, offered evidence relevant to temporary damages; and it is presumed that the court correctly instructed the jury as to the evidence and the measure of damages relevant to the recovery of temporary damages. Moore v. Humphrey, 247 N.C. 423, 432, 101 S.E.2d 460.
Defendant brought forward no exception which, if allowed, would constitute a ground for a new trial. It would appear that plaintiffs' recovery was not excessive.
No error.
PARKER, J., not sitting.