dissenting: I feel constrained to dissent from the opinion of the Court, because I am convinced that upon the issues as answered' by the jury, the action should be dismissed. One question only is presented: Can the plaintiff maintain’this action on the complaint, .answer and verdict ?
In his complaint the plaintiff alleged, in 'substance, that the defendant is maintaining a public nuisance in respect to a large abandoned rock quarry in permitting the city of Charlotte to throw filth and refuse into it, whereby plaintiff is damaged. Why plaintiff does not sue the city of Charlotte is not stated. Upon the trial these issues were submitted by consent, without exception or objection, as being the only issues raised by the pleadings:
“1. Did the defendant maintain or permit to be maintained on the premises a public nuisance, as alleged in the complaint ?” Answer: “Yes.”
“2. What special damages, if any, has the plaintiff suffered on account of said nuisance?” Answer: “Nothing.”
The defendant moved for judgment dismissing' the action. The court denied the motion, and defendant appeals, assigning such refusal as error.
There'is no other question presented upon this appeal.
A plaintiff cannot have judgment abating a public nuisance when the jury have found that he has suffered no special damage. The remedy is by indictment. Pedrick v. Railroad, 143 N. C., 496. Special damage is such damage as is not common to the public. Pedrick v. Railroad, supra.
.In regard to a public nuisance, Mr. Justice Connor says in that case: “It is elementary learning that no private citizen may sue therefor, unless he suffers some damage which is not common to the public; or, to express it' affirmatively, he may sue by showing that he sustained some special peculiar injury different in kind from the public.”
*664In Manufacturing Co. v. Railroad, 117 N. C., 579, the same principle is recognized as well settled in a learned opinion by Mr. Justice Avery, who says in opening: “The most interesting question presented by this appeal is whether the plaintiff, in any aspect of the evidence, has shown such special damage as would entitle him to redress by civil action for a public nuisance ?”
This special damage, as the learned Judge proceeds to demonstrate, need not be confined to one person. It must be unusual, extraordinary, but not necessarily singular. Mr. Wood says: “The rule is well established that no person can maintain an action (on a public nuisance) unless he sustains a special damage therefrom differing from that sustained by the rest of the public.” Section 645, Wood on Nuisances.
That this has been recognized law from the earliest times to the present is shown by an examination of text writers and decisions, too numerous to quote. Coke Inst., 560-; Williams’ case, 5 Coke, 72; Joyce on Nuisances, 267-271; Reyburn v. Sawyer, 135 N. C., 336.
Not only do the averments of the complaint state facts which constitute a public nuisance, but plaintiff admits it by consenting to the force of the first issue. That being so, and the jury having found that plaintiff suffered no special damage, it would seem that ordinarily the action would be dismissed without much controversy.
Although the plaintiff has not excepted or appealed, the Court orders a new trial of the whole case because the issues submitted, it is said, are not determinative of the issues r'aised by the pleadings. And this is done ex mero motu by the Court, although neither appellant nor' appellee asks for it, and notwithstanding that the cause is before us solely upon the motion of defendant for judgment upon the issues. If defendant is not entitled to it, then the judgment, it seems to me, necessarily stands affirmed.
There are two answers to the position of the Court which appear to me to be conclusive. The first is that the form of the issues were agreed upon, and if they are not full enough, *665or if they aré not properly worded, it is. plaintiff’s fault. He should have, excepted and tendered others. This has been decided repeatedly. Clark’s Code, sec. 395.
In McDonald v. Carson, 95 N. C., 377, it is held that where issues are submitted, a party cannot be heard to assign error that the court did not submit an issue on a particular question upon which he did not tender an issue. “It is too late,” says Smith, G. J., “after the trial, to complain that certain issues were not submitted to the jury if they were not asked for in apt time.”
In the case at bar neither party complains of the issues submitted, and the form in which they are expressed are in strict accord with the precedents I have cited. But it is said by the Court that as these issues are not determinative of the issues raised by the pleadings, no judgment whatever can be rendered for either party. It is very singular that no such thought seems to'have occurred to the counsel for plaintiff or defendant, both of whom were represented in this Court by some of the ablest lawyers in the State. I am sure they, as well as the learned judge below, will be surprised to learn that the issues they all agreed upon are deemed so wholly insufficient that no judgment for either party can be rendered upon them.
There are only two questions or issues raised by the pleadings. One is the nuisance and the other is the damage, and both were submitted to the jury. The court has not pointed out any other issues raised by the pleadings than those I have named. ' But the Court says, in effect, that the damages are not to be confined to special damages and that the plaintiff may recover judgment if he “has suffered either injury or damage of any kind done or threatened.” "While this proposition, I submit, is against all of our own precedents (Pedrick’s case, supra), yet, admitting it, the fact remains that an issue in respect to damages was submitted and the form of it was approved by plaintiff. If it was confined erroneously to special damages, it was plaintiff’s own fault, and if he does not complain, why should this Court 'find fault? Surely two issues as to damages should not have been submitted, but if an additional issue in respect to some other kind of damage was proper it was incumbent on plaintiff to tender it.
*666It is perfectly evident that the learned and astute lawyers for the plaintiff framed the damage issue in its present form, because their <3omplaint specifies with care and particularizes the elements of damage and each item thereof, and they constitute special damages only peculiar to this plaintiff within every known and accepted definition of that term. Pedrick v. Railroad, supra; Manufacturing Co. v. Railroad, supra.
It is universally held in this country that where damages are 'specified in the complaint the plaintiff can recover for no other; and all damages must be specially pleaded where, as in this case, they do not necessarily flow to the plaintiff from the wrong complained of. 5 Enc. PL- and Pr., 733, and cases cited. In stípport of his averment that he is peculiarly injured by the nuisance, the plaintiff alleges, and testifies, that he owns property near the rock quarry complained of; that his house was injured by explosions from blasting; that his property was made uninhabitable from nauseous smells, causing sickness to his tenants and himself; that the rental value of his property was reduced, and that, besides a good dwelling house, the plaintiff has on said lot a small dwelling house and several other buildings for business purposes, and on account of the nuisance allowed and permitted by the defendant on said adjoining lot, as above set out, this plaintiff has been unable to rent or get any substantial income from some of these buildings.
These are the only injuries plaintiff sustained, and they not only come within the definition of special damage peculiar to him, but the plaintiff classified them as such, for he sums up his catalogue of grievances in these words: “That the defendant is guilty of a wrongful and unlawful act in maintaining, permitting and allowing said nuisance, above set out, to exist on its lot or tract of land, on account of which this plaintiff has suffered and continues to suffer ‘special and peculiar damages/ being an adjoining lot owner; and not only has he been damaged in his health, but he has been, and is, greatly damaged in his property fights and interests, in that the market value of his said property and the income therefrom has been greatly decreased and diminished on account of the maintenance of said nuisance, all to his great damage in the sum of two thousand dollars ($2,000).”
*667This Court bas repeatedly beld tbat it .will not interfere with., the discretion of the trial judge in shaping and submitting issues, if opportunity is given to present evidence upon the issues raised by the pleadings. Clark’s Code, sec. 396, and cases cited. Opportunity was not only given, but both plaintiff and defendant did introduce evidence under the issues submitted bearing upon each allegation of the complaint. In fact, if my brethren will read the evidence they will find that the whole of it is strictly pertinent to the issues submitted and that there is none of it applicable to any other issue that could be logically framed as arising upon the. pleadings. .As no evidence was excluded by the court, we must assume that the plaintiff introduced all he had and all that he could produce on another trial. "We are not to assume that the judge erred in charging the jury as to what constitutes special damages, for there is no exception to the charge; both sides seem contented with it, and it is not before us.
The case of Bryant v. Insurance Co., quoted in the opinion, is no authority here, for in that case no issue at all was submitted covering a material matter in dispute necessary to a decision of the controversy. Here, the issue covering the question of damages framed by plaintiff has been submitted, which issue is peculiarly responsive to the allegations of the complaint, and the character of the evidence offered fits it exactly and would fit no other issue.
The learned judge below and the twelve jurors had better opportunity to judge of the value of plaintiff’s evidence than we have, and if the “twelve” erred in finding the second issue, the plaintiff seeks not to correct it by excepting and appealing, and why should this Court undertake to do so ? In no event, I submit, is the Court justified in setting aside the findings already made and ordering a new trial. They should be permitted to stand, as no error has been assigned by either side affecting them.
If other additional issues are deemed essential and necessary to be determined before any judgment can be rendered for either party, then the Court shall follow established precedents. In McDonald v. Carson, 95 N. C., 378, Chief Justice Smith *668says: “Where, in the.opinion of the Court, additional findings are necessary in order to do justice between parties, the case may be sent back for .trial of additional issues.” But inasmuch as every allegation of the pleadings and every word of the evidence are directly pertinent to the issues submitted, I fail to see the necessity for any further findings. To my mind it is plain that the jury have already passed upon the entire case, and, under such circumstances, for the Court of its own motion to order a new trial appears to me, with entire deference for my brethren, to be done at variance with the practice of'the Court.