dissenting: While I agree with the majority of the Court that the defendant is liable for damage to the property of plaintiff, it is my opinion that it is also responsible for sickness caused by its tortious act. It may be that the eases' supporting the opposite view, which is'now taken by this Court, may be numerically larger than those favoring my position, though I have not counted them, but I do not think it can safety be said that the weight of authority or the greater force of reasoning is on that side.' It is held in numerous well considered decisions that a city is not absolved, even as a governmental agency, from liability for a nuisance caused in repairing or cleaning streets by dumping unhealthy refuse or rubbish near a plaintiff’s house, on the theory that street cleaning is a duty an,d a public benefit in which the plaintiff shared, and even a prompt abatement by the city of the nuisance does not prevent a recovery for damages arising during its continuance. Haag v. Vanderburg County, 60 Ind., 511; New Albany v. Slider, 21 Ind. App., 392. In 28 Cyc., p. 1293, and note 42, et seq., will be found many cases sustaining the principle upon which the proposition just stated rests, and which also supports this text, under the title, “Nuisance created or permitted by corporation.” “If in the exercise of its corporate powers a municipal corporation creates or permits a -nuisance by non-feasance or misfeasance, it is guilty of tort, and like a private corporation or' individual, and to the same extent, is liable to damages in a civil action to any person suffering special injury therefrom. So a municipal corporation has' no more right to erect and maintain a nuisance on its own land than a private individual would have to maintain such a nuisance on his land; it is entitled to exercise the same rights in respect to the use of its property as an individual, and any lawful use thereof, or the doing of those things which the law authorizes, cannot, it is held, amount to a nuisance in. itself, although the execution of the power may be in such a manner as to result in an action*416able nuisance.” Tbe cases thus collected were decided by courts entitled to the highest respect and the greatest consideration, because of their admitted ability and learning. The case of Downs v. High Point, 115 N. C., 182, is cited in the note to 28 Cyc., p. 1293, as sustaining the doctrine, and -we think it does. It is said that the only question presented there related to the framing of the issues, but I think not. The judge charged the jury as follows: “The plaintiff alleges that his special damage consists in the fact that proximity to alleged nuisances caused illness of .a serious nature to himself and family, much expense on account of such illness, and that the other parts of his neighborhood were not so affected. If this be true, it is special damage within the meaning of the law,” and in that immediate connection, the Court, in its opinion by Justice Avery, said: “We’ think there was no error in refusing to instruct the jury upon the evidence that plaintiff could not recover. The instruction given was warranted by the evidence, and embodied the principle laid down by leading text-writers. Wood on Nuisances, secs. 561-514.”
I do not think that Asbury v. Albemarle and Sewerage Co. v. Monroe have any direct bearing or decisive effect upon the question. The decisions in those cases may well - be sustained upon grounds and for reasons not applicable to this case, and the same may be said of the cases cited in the opinion of the Court, such as Hull v. Roxboro, 142 N. C., 453; Peterson v. Wilmington, 150 N. C., 76; Metz v. Asheville, 150 N. C., 748.
It is said in 2 Wood on Nuisances (3d Ed.), sec. 561, p. 756, that “the right to have the air float over one’s premises free from ^11 unnatural or artificial impurities is a right as absolute as the right to the soil itself.” We have held in Fitzgerald v. Concord, 140 N. C., 110; Brewster v. Elizabeth City, 142 N. C., 11; Kinsey v. Kinston, 145 N. C., 108; Revis v. Raleigh, 150 N. C., 352, and quite recently in Bailey v. Winston, 157 N. C., 252, and Smith v. Winston, ante, 50, that a municipality is under a positive duty to keep its streets in reasonably passable condition, and for any defects thereon, due to the neglect of its corporate duty or to its negligence, it is liable in damages to persons injured thereby. Where it permits an *417excavation or bole in tbe street to remain open and unguarded, after notice of its existence, it bas been beld liable to a person falling therein and breaking bis limb, with consequent injury to bis health. I can perceive no substantial difference in law, or in fact, between an injury to health caused by digging a hole and the same general kind of injury caused by filling it up. The- ground of action is the wrong to the citizen in the enjoyment of his health and property. It can make little or no difference to him whether his health is wrecked as the result of falling in a hole or by inhaling noxious odors and contaminated air thrown off from rubbish or refuse deposited in the hole for the purpose of closing it, and there can be no difference in principle between the two cases.
It is argued that it would produce a multiplicity of suits, “or become the parent of a vast mass of litigation,” if a city was held liable in such a case as this one, and that taxation to pay the judgments would be “imposed alike upon the innocent and guilty.” The last reason would apply whether we hold the city liable for injury to health or only for injury to property, and the former would apply to a case for a defect in the streets by which numerous persons may be injured in body and health, or where there are numerous defects in streets causing like injury. The reasons are, therefore, inadequate to overthrow the common-law principle that “where there is a wrong, there is also a remedy.” The duty of the municipality to keep its streets in good condition and proper'repair is statutory. It is enjoined by the- law, also, that it shall take such measures as are appropriate to prevent or abate nuisances and to preserve'and safeguard the health of its citizens. The corporate authorities of a town are not only required to keep its streets in good condition and repair, but are indictable for not doing so. S. v. Commissioners, 6 N. C., 371, and are equally liable, civilly or criminally, for maintaining a nuisance upon its land 'within the corporate limits. 2 Wood on Nuisances, sec. 748, p. 1004.
In a well considered ease it was held to be a “well recognized rule that municipal corporations are liable for torts in certain classes of cases, including nuisances, in the same manner as *418natural persons.” Haag v. Commissioners, 60 Ind., 511, citing several text-writers, among other authorities, and quoting this passage from 2 Addison on Torts (D. and R. Ed.), p. 1315: “A municipal corporation has no more right to maintain a nuisance than an individual would have, and for a nuisance maintained upon its property, the same liability attaches against a city as to an individual.” In the Haag case defendant was charged with injuring the health of plaintiff’s family, causing the death of her son by the erection of a pesthouse for the detention and treatment of smallpox patients. This elementary principle was applied in Harper v. Milwaukee, 30 "Wis., 365, and thus stated: “The general rule of law is that a municipal corporation has no more right to erect and maintain a nuisance than a private individual possesses,- and an action may be maintained against such corporation for injuries occasioned by a nuisance for which it is responsible,, in any case in which, under like circumstances, an action could be maintained against an individual. Pittsburgh v. Grier, 22 Pa. St. R. (10 Harris), 54; Brower v. New York, 3 Barb., 254; Young v. Leedom, 67 Pa. St. R., 351; Delmonico v. New York, 1 Sandf., 222, are a few of the numerous cases which assert or recognize this principle.” See, also, Kolb v. Knoxville, 111 Tenn., 311; Stoddard v. Saratoga Springs, 127 N. Y., 261; Fort Worth v. Crawford, 74 Texas, 404; Clayton v. Henderson, 103 Ky., 228; Valparaiso v. Moffitt, 12 Ind, App., 250.
I may remark here that not only does the case of Harper v. Milwaukee, supra, decide the very question before us, but it has been expressly recognized and approved by this Court aS stating the law correctly in Jones v. North Wilkesboro, 150 N. C., 646. Justice Connor says in that ease: “It is manifest that a municipal corporation has no legal right to establish and maintain a condition which creates a public nuisance, per se — that is, a condition which seriously endangers the health and lives of the people. Harper v. Milwaukee, 30 Wis., 365.” A municipal corporation is not exempt from responsibility when the injury is accomplished by a corporate act which is in the nature of a trespass upon the rights of another, and it cannot, by any means or in any manner, create with impunity a public *419or private nuisance, nor bas it any more immunity from legal liability for causing or maintaining tbe same tban an individual bas under tbe.law. Nooman v. Albany, 79 N. Y., 470; Seifert v. Brooklyn, 101 N. Y., 136. Tbe Court said in tbe case last cited, at p. 142, tbat, “Municipal corporations have quite invariably been beld liable for damages occasioned by acts, resulting in tbe creation of public or private nuisances, or for an unlawful entry upon tbe premises of another, whereby injury to bis property bas been occasioned.” And again, at p. 144, speaking more directly to tbe question here involved, tbe Court said in tbat case: “Tbe immunity which extends to tbe consequences, following tbe exercise of judicial or discretionary power, by a municipal body or other functionary, presupposes tbat such consequences are lawful in their character, and tbat tbe act performed might in some manner be lawfully authorized. When such power can be exercised so as not to create a nuisance, and does not require tbe appropriation of private property to effectuate it, tbe power to make such an appropriation or create such nuisance will not be inferred from tbe grant.” It was further .decided in tbat case, with reference to tbe liability of tbe corporation for an act done under authority of its charter: “Tbe rule tbat a municipal corporation acting under tbe authority of a statute cannot be subjected to a liability for damages arising from tbe exercise by it of tbe authority so conferred, is confined to such consequences as are tbe necessary and -usual result of the proper exercise of tbe authority. It does not shield tbe corporation where injury results solely from tbe defective manner in which the authority was originally exercised and from continuance in wrong after notice of tbe injury.” These principles are also approved in Bolton v. New Rochelle, 32 N. Y. Sup., 442. There is a distinction made in Seifert's case between tbe judicial and ministerial duties of a municipal corporation with reference to its streets, which it will be well to state here in tbe words of tbat Gourt: “It was held (in Hines v. Lockport, 50 N. Y., 236) tbat tbe duty resting upon tbe corporation of building, opening, and grading streets, sidewalks, sewers, etc., was judicial, but that after they were constructed tbe duty of keeping them *420in repair was ministerial, and from an omission to perform that duty liability arose.” This harmonizes with our decisions upon the subject. We hold such corporations liable for injuries from defects in their streets, as we have already seen, whether the defect causes a broken limb or produces broken and shattered health directly, or as a consequence of some preceding injury to the body or limbs. It is a very shadowy distinction to make between an injury to the body and one to the health. H do not think that it can properly be said that in placing rubbish or other noxious or deleterious substances in a street, even to fill a hole, is the exercise of a judicial duty or a governmental function. These ideas find strong support in what is said by a recent text-writer; not only in regard to the right of a person who incurs special damage from a tort to sue, but to recover, in such a case, against a municipal corporation when he has sustained injury to his health. “While municipal corporations have no more right than a private person to create or maintain' a common nuisance, nevertheless, so long as the injury suffered by each individual is the same in kind as that suffered by every other individual in the community or section of the community affected by such a nuisance, none of them can' maintain a private action against the corporate body. The only remedy available in such a case is by indictment. But-if, even though the nuisance be a public one, a person can show that he has suffered therefrom some special and peculiar damage, differing in kind from that suffered by him in common with the rest of the community, he is entitled to recover in a civil action compensation therefor from the municipality that created or maintained such nuisance. Speaking generally, municipal corporations stand, in regard to the creation and maintenance of private nuisances, on substantially the same footing as private corporations and natural • persons. Their rights are no greater; their civil responsibility is generally no less. As a rule, therefore, they are liable in a private action to any individual who suffers damage by reason of a private nuisance created and continued by them.” Williams on Municipal Liability for Torts, pp. 305, 306. He supports his text by the citation of many cases, to a few of which I will refer *421specially, and to some striking passages sbowing tbe ground and extent of tbe decision. “These and other facts well warranted the conclusion of the trial court that the act of the defendant, in thus emptying its sewers, constituted an offensive and dangerous nuisance. Moreover, the plaintiff is found to have sustained a special injury to his health and property from the same cause, and we find no reason to doubt that he is entitled, not only to compensation for damages thereby occasioned, but' also to such a judgment as will prevent the further perpetration of the wrong complained of. Goldsmid v. Commissioners, 1 Eq. Cas., 161; 1 Ch. App. Cas., 348.” Chapman v. Rochester, 110 N. Y., 273.
My neighbor has no right to excavate his soil in such a manner as to create a stagnant and offensive pond, so near my premises as to be a private nuisance by rendering my house unhealthy. lie cannot use his property for a purpose that will prevent the enjoyment of mine. 3 Blackst. Com., 217. The same law that protects my right of property against invasion by private individuals must protect it from similar aggression on the part of municipal corporations. A city may elevate or» depress its streets, as it thinks proper, but if in so doing it turns a stream of mud and water upon the grounds and into the cellars of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, upon what ground of reason can it be insisted that the city should be .excused from paying for the injuries it has directly wrought? Nevins v. Peoria, 41 Ill., 502. It was held in Jacksonville v. Doan, 145 Ill., 23, that the city should not be excused from paying for injuries to health which it has directly wrought and which proceeded from a pond of stagnant water, caused by negligence in improving its streets. The case refers, with approval, to Nevins v. Peoria, supra, and cites other strong authorities.-
. It is against natural justice to allow the creation of a dangerous nuisance by a city, affecting the health of a citizen, and then hold the corporation immune from damages. There lurks in this principle of exemption the danger of arbitrary power, which may be oppressively exercised over the helpless and de*422fenseless citizen. As well at once declare that no one can acquire any rights to his home which the municipal corporation is bound to respect, for if he cannot live in it with comfort to himself and family, of what value is it to him? Can the corporation drive him from it by foul and offensive odors and a poisoned atmosphere, and then restrict him. to mere property damage? There is something more valuable to him, but for which the law, as now declared, allows him nothing. The power of a corporation should be regarded as subject to the just limitation that it is forbidden to be exercised in such manner as to create nuisances injurious to private rights, health as well as property, especially where such a consequence is not a necessary result of properly exerting its'power, and this I believe to be the common law of this country. Edmondson v. Moberly, 98 Mo., 523; Hannibal v. Richards, 82 ibid., 330.
The charter of this corporation (Laws 1907, ch. 209, sec. 39) confers upon it the power to abate nuisances, not to create them, and requires the corporation to provide for the proper maintenance, repair, and regulation of the streets. It certainly "cannot be argued from these provisions that the unnecessary creation of a nuisance is a legitimate exercise, of any function of government possessed by the corporation. If it is negligent in the performance of its ministerial duties, such as repairing its streets, and injury results to others of whatsoever kind, we have held repeatedly that it commits a legal wrong, for which it must respond in damages.