State v. Brown, 191 N.C. 419 (1926)

March 17, 1926 · Supreme Court of North Carolina

191 N.C. 419

STATE v. L. W. BROWN.

(Filed 17 March, 1926.)

1. Private Nuisance — Abatement—Suit.

At common law a party injured by a nuisance could bring an action on the case for damages or abate the nuisance in proper cases without suit.

2. Entry Upon Land of Another.

Entry upon the land of another and abatement of a private nuisance thereon by the injured party without suit may usually be regarded as a remedy which necessity alone indulges in cases of great emergency, in which the ordinary remedy would not be effectual.

3. Nuisance on Wrongdoer’s Land.

As a general rule if the nuisance is on the wrongdoer’s own land, he should first be warned and requested to abate it himself, but to this rule there may be exceptions, as when the nuisance is immediately dangerous to life and health.

4. Public Peace.

The public peace' should not he jeopardized by permitting individuals to redress their own wrongs when they might obtain adequate security by • resorting to courts of justice.

The defendant was convicted of malicious injury to- real property in breach of C. S., 4301, before Barnhill, J., at October Term, 1925, of DupliN, and upon errors assigned he appealed to the Supreme Court.

On 1 August, 1921, W. R. Pate, for value, leased the Bass mill pond on Folly Branch to H. B. Gaylor and his associates for a period of ten years. The lessees were given the exclusive right to go there at will and to take others with them for the purpose of hunting and fishing. Gaylor and his associates went into possession under the name of the Long Leaf Pishing Club, repaired the dam, put in gates, ponded the water, and stocked it with fish obtained from the Government in 1921. In January, 1925, the gate was raised and the water and the fish went down, the stream. The gate was opened on four different occasions.

The defendant lived in Magnolia and owned a farm adjoining the land of ~W. R. Pate, on which he kept his hogs and cattle. In the fall of 1902 he cut a road from his farm to the Magnolia-Kenansville highway. As a part of the road he built a bridge across Eolly Branch above the pond, the road never having been repaired except under his direction. He claims it as his road. He testified that in January, 1925, he tried to cross the bridge and was prevented by high water which -had been backed on the bridge from the pond. He said his road thus became impassable and that he pulled up the gate and let the water run out of the pond so that he could repair the bridge. He had to go thirty or forty feet off his land to get to the gate. The defendant testified that he had complained to members of the club and had told them of his predicament. One of'the defendant’s witnesses testified: “The water was not across the bridge. The bridge was so you couldn’t cross before the fish pond was established.”

Attorney-General Brum/mitt and Assistant Attorney-General Nash for the State.

Stevens, Beasley & Stevens for defendant.

Adams, J.

At common law the party injured by a nuisance had a choice of two remedies. (1) He could bring an action on the case for damages, and, if a tenant of the freehold, he could resort to the assize of nuisance or to the writ of quod permittat prosternere, which not only gave the plaintiff satisfaction for his injury, but removed the cause by abating the nuisance. These writs, long out of use, have been super-' seded for practical purposes, in the absence of special statutory provision, by an action for damages and abatement and by a suit in equity to restrain the continuance of the wrong. (2) The other remedy at common law was an abatement of the nuisance without suit by the act and authority of the party aggrieved. 3 Bl. Com., 5, 220; 2 Pol. & Mait., 53; 7 Hold. His. Eng. Law, 330.

Tbe defendant in tbe present action contends tbat be bas a right of way extending from bis farm through Pate’s land to tbe Magnolia-Kenansville highway; tbat several years ago, as an essential part of bis easement, be built a bridge across Folly Branch; and tbat tbe lessees tortiously obstructed tbe stream and flooded bis bridge, thereby creating a private nuisance which be bad a right to abate without suit. It is understood, of course, tbat we are not dealing with a public nuisance, and in tbe principle applicable to an abatement in such cases we are not now interested. S. v. Dibble, 49 N. C., 108; S. v. Parrott, 71 N. C., 311. Tbe defense is based on tbe defendant’s alleged right to enter upon tbe premises of tbe lessees and release tbe ponded water. All tbe exceptions relate to this proposition, and if tbe proposition is not sound or is not sustained by tbe evidence tbe defense must fail.

Tbe theory upon which tbe common law gave a remedy by abatement of a private nuisance bad its foundation in tbe right to redress a private wrong, — particularly tbe obstruction or annoyance of such things as required an immediate remedy-atSTcould not await tbe “slow progress of tbe ordinary forms'ofjustice.’’ 3 Bl., 6. It is no doubt upon this theory tbat some of tbe authorities say tbat if the acts of tbe occupant are in themselves unlawful and tbe nuisance is immediately dangerous to life or health, tbe person injured may enter on tbe land of such occupant and abate tbe wrong; but Jaggard and Pollock suggest tbat it is a “hazardous course at best, for a man to take tbe law into bis own bands, and in moderp times it can seldom, if ever, be advisable.” 2 Jaggard on Torts, 901; Pollock on Torts (12 ed.), 426. Entry upon tbe land of another and abatement of a private nuisance thereon by tbe injured party without suit may usually be regarded as a remedy which necessity alone indulges in cases of great emergency, in which tbe ordinary remedy would not be effectual. Gates v. Blincoe, 26 Am. Dec., 440. Accordingly, this Court bas said, “We do not undertake to lay down any general rule as to bow far tbe individual may go in tbe abatement of tbe nuisance whiph is an injury to him.” Wolfe v. Pearson, 114 N. C., 622, 635. Also, it may be said as a general rule tbat if tbe nuisance is on tbe wrongdoer’s own land be should be first warned and required to abate it bimself, — a rule to wbicb there may be exceptions, as for example when tbe nuisance is immediately dangerous to life or health or when some special emergency demands immediate action. 2 Jaggard, 800. But tbe defendant has not shown tbe necessary emer-jj gencj.y True, be testified tbat tbe water was over tbe bridge and tbat "Tie opened tbe gate and let tbe water run out of tbe pond in order to repair tbe bridge; but be introduced other testimony wbicb was in direct conflict with bis own. Nor bas be shown tbe necessary notice. He complained to tbe members of tbe club and told them bis predica-rnent; but there is no evidence that he notified them that he would abate the nuisance if they did not. Indeed, the evidence is not entirely free from an intimation .of secrecy on his part. Under the circumstances he should have sought relief in the courts/“The public peace should not be jeopardized by permitting individuals to redress their own wrongs when they might obtain adequate security and indemnity by resort to any of the ordinary remedies in courts of justice.” Gates v. Blincoe, supra.

What we have said disposes of all the assignments of error. As to the first we have assumed that the defendant had acquired the right of way; in the second there is no reference to the necessity of a warning and notice of entry; and in the instructions excepted to we find no error. The defendant was tried upon an indictment, but the fine imposed did not exceed the punishment prescribed by the statute in case of the complainant’s failure to state in his affidavit that the damage inflicted was more than ten dollars. C. S., 4301.

No error.