Stowe v. City of Gastonia, 231 N.C. 157 (1949)

Nov. 23, 1949 · Supreme Court of North Carolina

231 N.C. 157

MAMIE STOWE v. THE CITY OF GASTONIA, a Municipal Corporation, and GASTONIA COMBED YARN CORPORATION.

(Filed 23 November, 1949.)

¡Municipal Corporations § 15b: Waters and Watercourses § 3: Nuisances § 3d—

Tbe complaint alleged that defendant corporation discharged industrial wastes into a stream above plaintiffs property and that defendant municipality discharged sewage therein, and that the several, joint and concurrent acts of both defendants rendered the waters of the creek polluted and constituted a continuing trespass and nuisance to the damage of plaintiff’s property. Held: Demurrer on the ground of misjoinder of parties and causes was properly overruled.

Appeal by defendants from Bobbiii, J., at August Civil Term, 1949, of GrASTON.

Civil action to recover damages allegedly resulting from a nuisance, created by tbe several, joint and concurrent acts of defendants as set forth in tbe complaint, and for injunction against continuance of such acts.

Plaintiff alleges in her complaint: That she is tbe owner of a certain tract of land situated on Catawba Creek, in Gaston County, North Carolina ; that, prior to tbe acts hereinafter described, tbe water of said creek, as it flowed through, and adjacent to the lands of the plaintiff, was free of industrial wastes, noxious odors, sewage and poisonous substances, etc.; that defendant, Gastonia Combed Tarn Corporation, has constructed, maintains and uses a pipe line from one or more of its factories to Catawba Creek, and through said line discharges into said creek above the land of plaintiff wastes from its manufacturing processes, — sodium hydroxide, caustic sodas, dyes, chemicals and industrial wastes; that defendant, City of Gastonia, owns, maintains and operates a sewer system which carries sewage and other wastes to, and empties same into the sewage disposal plant, owned, maintained and operated by it, and located on Catawba Creek above the land of plaintiff; that the said disposal plant discharges its wastes into Catawba Creek; “that the defendant City, through its sewer system and sewage disposal plant, and the defendant, Gastonia Combed Yarn Corporation, through its pipe line, are now and have been for several years past discharging into Catawba Creek substances as hereinbefore set out so that the two defendants have joined together and contaminated the waters of Catawba Creek so that by the several, joint and concurrent acts of both defendants the waters of said creek have become polluted and filled with a filthy sediment, impregnated with foul, nauseating and abhorrent stenches and odors, etc.,” such as to constitute a continuing trespass and a nuisance, to the damage of plaintiff in substantial amount.

Defendants demurred to tbe complaint upon tbe ground that there is a misjoinder (1) of parties, and (2) of causes of action. Tbe demurrers were overruled, and defendants appeal to tbe Supreme Court and assign error.

Tillett & Campbell and Wade H. Sanders for plaintiff, appellee.

Ernest R. Warren for City of Gastonia.

George B. Mason and Cherry & Hollowell for Gastonia Combed Yarn Corporation, defendants, appellants.

Winborne, J.

There is striking similarity in the allegations contained in the complaint in the present action and those set forth in. the complaints in the case of Moses v. Town of Morganton, and others, reported in 192 N.C. 102, 133 S.E. 421, and in the case of Lineberger v. City of Gastonia, and others, reported in 196 N.C. 445, 146 S.E. 79. It is there held, under similar circumstances and conditions, that there was no misjoinder of parties or of causes of action.

The cases of Hampton v. Spindale, 210 N.C. 546, 187 S.E. 775, and Clinard v. Town of Kernersville, 215 N.C. 745, 3 S.E. 2d 267, upon which appellants rely, are distinguishable in factual situation.

Hence, upon the authority of Moses v. Morganton, supra, and Lineberger D. Gastonia, supra, in pertinent aspect, the demurrers were properly overruled.

Affirmed.