(dissenting):
Although he was forced to abandon his business by the defendant’s infiltration of his store with noxious odors, as the majority finds, yet the plaintiff is denied damages. The premise of the holding is that until the creator of a nuisance is notified that his acts are resulting in injury to another, no right of action accrues to the latter, no matter how grievous the intrusion. The consequences of this view are amazing. One’s property may be invaded by offensive gases from a source not discoverable for weeks, months or even years, and in the end the property rendered uninhabitable or otherwise valueless, but the injury is not actionable ! I cannot believe this is the law in North Carolina.
The majority seems intent upon deciding this case according to the law of the Restatement of Torts, but that is not our obligation. We are bound by the law according to North Carolina even though it deviates from the Restatement. My .analysis of the North Carolina Supreme Court decisions discloses that while the Restatement has been cited, it has not been slavishly followed. Other authorities have been cited too. With cognizance of them all, the Court has not yet said, as I read the North Carolina opinions, that recovery cannot be allowed in the absence of proof of scienter on the part of the offender.
This element is not made crucial in any 'North Carolina opinion I can find. The majority argues that knowledge was in fact present in the North Carolina cases, and hence there was no occasion for the Court to discuss it. If this argument be factually correct, then with equal logic it follows that those cases do not hold knowledge to be a sine qua non for recovery.
A private nuisance in North Carolina, and generally, consists of a continuing condition, or recurrent acts, springing from an intentional or negligent use of one’s property and substantially injuring another in his person or property, through an unprivileged and unreasonable invasion of the latter’s utilization of his land.
Such an intrusion on the personal and property rights of another is actionable if the generating acts are intentional, though there be no proof of negligence. On the other hand, if the injuring acts were accidental — devoid of neglect or intent — there can be no recovery. If the conduct is careless or is deliberate, and injuriously entrenches upon the private rights of another, the operation constitutes an actionable private nuisance, no matter how innocent or bona fide it may be. These propositions are, I believe, doctrine in North Carolina.
The District Court’s findings established, as the majority concedes, that appellee Masonite was purposely emitting noxious gases, which substantially and unreasonably invaded Wright’s property. Thus, his hurt arose from what Masonite did, and intended to do, i. e., to expel and rid its plant of unwholesome fumes. True, the expulsion was not negligent, reckless, ultrahazardous or accidental in any sense, and Masonite did not intend to injure anyone, but injury there was.
To ascertain whether the acts were intentional, the inquiry is directed in North Carolina, and rightly I think, to the voluntariness of the offending acts. This inquiry does not pertain to the effect or consequences of the acts. It is not whether the injury was intentional; but whether the causative acts were intentionally done. The only question in respect *667to the injury is whether it was substantial and unreasonable.
Precedent in North Carolina, in my appraisal, does not impose as a prerequisite of “intentional” the condition that the guilty offender know he is guilty. It is intentional if his use of his property is deliberate and is an unreasonable use. In comparable circumstances — objectionable gases from a refinery on adjoining land — the Court in Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682 (1953) made these points in a comprehensive commentary:
“ [A] private nuisance exists in a legal sense when one makes an improper use of his own property and in that way injures the land or some incorporeal right of one’s neighbor. * * *
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“[T]he invasion which subjects a person to liability for private nuisance may be either intentional or unintentional ; * * * a person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case * * * (77 S.E.2d at 689) (Citations omitted.)
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“When the evidence is interpreted in the light most favorable to the plaintiffs, it suffices to support a finding that in operating the oil refinery the [defendant] intentionally and unreasonably caused noxious gases and odors to escape into the nine acres of the plaintiffs to such a degree as to impair in a substantial manner the plaintiffs’ use and enjoyment of their land. This being so, the evidence is ample to establish the existence of an actionable private nuisance, entitling the plaintiffs to recover temporary damages from the [defendant].”
Summarizing, the Court quotes the sententious statement of the late Justice Cardozo:
“ ‘One who emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions. He is not to do such things at all, whether he is negligent or careful.’ McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1.” (Id. at 690) (Accent added.)
If this statement was dictum when written, as the majority suggests, it has now been established as a sound proposition in the jurisprudence of North Carolina.
These principles were confirmed in Watts v. Pama Manufacturing Company, 256 N.C. 611, 124 S.E.2d 809 (1960)— vibration from a factory — apparently the latest pronouncement by the Supreme Court of North Carolina. Although in both opinions it referred to the Restatement of the Law of Torts, in effect recovery was declared permissible on the Cardozo thesis.
Our Circuit spoke similarly to the question in Norfolk & W. Ry. v. Amicon Fruit Co., 269 F. 559, 561-562, 14 A.L.R. 547 (4 Cir.1920):
“Defendant built this pipe line on its own land and for its own benefit, acting thereby in a private capacity and without legislative authority. However skillfully the work was done and whatever the diligence since exercised, it must be held responsible, not perhaps for a purely accidental occurrence, but for those injuries to an adjoining owner which actually and repeatedly and as it were inevitably resulted, despite the care with which the pipe line was maintained and used. This is the doctrine of Rylands v. Fletcher, L.R. I Exch. 265, long regarded as a leading case, and of the following * * (Citations omitted.)
To me the law of North Carolina more closely resembles Rylands v. Fletcher than it does the Restatement.
North Carolina does not hold with the theory that the creator of a nuisance is liable only from the time he is caught. The State does not allow him one bite. I would reverse the judgment on appeal, and give judgment on the finding of damages made by the District Court.