77 S.E.2d 682
The plaintiffs owned nine acres of land adjacent to property on which the High Penn Oil Company operated an oil refinery.1 The Southern Oil Transportation Company owned the refinery property until September 10, 1952.2
During that time it knowingly permitted the High Penn Oil Company to operate the refinery despite notice and protest from the plaintiffs that noxious gases and odors were escaping onto the plaintiffs' land.3 The plaintiffs brought suit against both companies.4
Their complaint asserted that the defendants were negligent and careless in specified particulars in constructing and operating the oil refinery.5 When read as a whole, however, the complaint alleged facts showing an intentional and unreasonable invasion of the plaintiffs' interest in the use and enjoyment of their land.6
Following a trial in which the defendants' motions for compulsory nonsuit were denied, the jury returned a verdict in favor of the plaintiffs.7 The High Penn Oil Company and the Southern Oil Transportation Company appealed to the Supreme Court of North Carolina from the judgment entered on the verdict.8
The evidence presented at trial showed that the High Penn Oil Company intended to continue operating the refinery in the future in the same manner as it had in the past.9
Whether the evidence is sufficient to establish that the High Penn Oil Company created an actionable or abatable private nuisance?10
Private nuisances per accidens or in fact are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated.11 A person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case.12 A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury.13
Yes. 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 High Penn Oil Company intentionally and unreasonably caused noxious gases and odors to escape onto 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.14 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 High Penn Oil Company.15
When the evidence is taken in the light most favorable to the plaintiffs, it also suffices to warrant the additional inferences that the High Penn Oil Company intends to operate the oil refinery in the future in the same manner as in the past.16 If permitted to carry this intent into effect, the High Penn Oil Company will cast noxious gases and odors onto the nine acres of the plaintiffs with such recurring frequency and in such annoying density as to inflict irreparable injury upon the plaintiffs in the use and enjoyment of their home and their other adjacent properties.17 The issuance of an appropriate injunction is necessary to protect the plaintiffs against the threatened irreparable injury.18 This being true, the evidence is ample to establish the existence of an abatable private nuisance, entitling the plaintiffs to such mandatory or prohibitory injunctive relief as may be required to prevent the High Penn Oil Company from continuing the nuisance.19
The evidence is sufficient to establish that the High Penn Oil Company created an actionable or abatable private nuisance.20
Whether the complaint states a cause of action based solely on negligence?21
When the complaint is construed as a whole, it alleges facts which show a private nuisance resulting from an intentional and unreasonable invasion of the plaintiffs’ interest in the use and enjoyment of their land.22
No. To be sure, the plaintiffs assert that the defendants were negligent and careless in specified particulars in constructing and operating the oil refinery.23 When the complaint is construed as a whole, however, it alleges facts which show a private nuisance resulting from an intentional and unreasonable invasion of the plaintiffs’ interest in the use and enjoyment of their land.
The complaint does not state a cause of action based solely on negligence.24
Whether the evidence is sufficient to establish liability on the part of the Southern Oil Transportation Company for the alleged nuisance?25
No. The complaint charges the Southern Oil Transportation Company with responsibility for the nuisance alleged solely upon the theory that it actively participated in the construction and operation of the oil refinery.28 According to all the evidence, the Southern Oil Transportation Company had no part in these undertakings.29 The evidence for the plaintiffs indicates that the Southern Oil Transportation Company was the absolute owner of the land on which the oil refinery stands until 10 September, 1952, and that it knowingly permitted the High Penn Oil Company to operate the oil refinery upon the land owned and controlled by it down to 10 September, 1952, in such a manner as to constitute a nuisance despite notice and protest from the plaintiffs.30 The complaint does not invoke this evidence as a foundation of liability on the part of the Southern Oil Transportation Company for the nuisance alleged.31
These things being true, there is a fatal variance between the pleading and the proof of the plaintiffs with respect to the Southern Oil Transportation Company, and the action ought to have been involuntarily nonsuited as to the Southern Oil Transportation Company.32
The evidence is not sufficient to establish liability on the part of the Southern Oil Transportation Company for the alleged nuisance.33
Whether the trial court's instruction to the jury on the elements of a private nuisance was erroneous?34
It is elementary that where there are conflicting instructions with respect to a material matter — one correct and the other not — a new trial must be granted, as the jurors are not supposed to know which one is correct, and we cannot say they did not follow the erroneous instruction.35 The instruction conveyed to the jury a rather vague and a quite incorrect notion as to the essential elements of a private nuisance by requiring a finding that the operation injuriously affected the health, safety, morals, good order, or general welfare of the community.36
Yes. The core of this instruction is lifted bodily out of its context in Kass v. Hedgpeth and is without relevancy to the pleadings, the testimony, and the issues in the instant action.37 What has already been said respecting the basis of liability in the law of private nuisance makes it obvious that the instruction under scrutiny conveyed to the jury a rather vague and a quite incorrect notion as to the essential elements of a private nuisance.38 The instruction is not robbed of its prejudicial character by the fact that the court may have given the jury correct instructions on this phase of the case in other parts of the charge.39
The trial court's instruction to the jury on the elements of a private nuisance was erroneous.40