{ "id": 11359409, "name": "WHITESIDE ESTATES, INC., Plaintiff v. HIGHLANDS COVE, L.L.C., Defendant", "name_abbreviation": "Whiteside Estates, Inc. v. Highlands Cove, L.L.C.", "decision_date": "2001-10-16", "docket_number": "No. COA00-1378, COA00-1005", "first_page": "449", "last_page": "470", "citations": [ { "type": "official", "cite": "146 N.C. App. 449" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "312 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751711, 4757614, 4751602, 4750583, 4754239 ], "year": 1984, "pin_cites": [ { "parenthetical": "allowing attorney fees for bankruptcy, foreclosure, and receivership actions under N.C. Gen. Stat. \u00a7 6-21.2, since such activity was connected to the collection of the note" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0621-03", "/nc/312/0621-04", "/nc/312/0621-02", "/nc/312/0621-05", "/nc/312/0621-01" ] }, { "cite": "439 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11354337, 11354755, 11354505, 11355114, 11354701, 11354576, 11355217, 11355026, 11354643, 11354834, 11354933, 11354429 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/439/0830-01", "/us/439/0830-07", "/us/439/0830-03", "/us/439/0830-11", "/us/439/0830-06", "/us/439/0830-04", "/us/439/0830-12", "/us/439/0830-10", "/us/439/0830-05", "/us/439/0830-08", "/us/439/0830-09", "/us/439/0830-02" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "362 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "321 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569131 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/321/0260-01" ] }, { "cite": "352 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "84 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168487 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/84/0314-01" ] }, { "cite": "191 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "659" }, { "page": "659" } ], "opinion_index": 0 }, { "cite": "282 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562551 ], "year": 1972, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0001-01" ] }, { "cite": "418 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 102", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527186 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0102-01" ] }, { "cite": "437 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "335 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529224 ], "year": 1993, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0183-01" ] }, { "cite": "403 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. 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App. 484, 494, 403 S.E.2d 104, 111 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993) (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0446-01" ] }, { "cite": "528 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "137 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093532 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/137/0376-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "145 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435464 ], "year": 2001, "pin_cites": [ { "page": "65", "parenthetical": "No. 00-1059" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0060-01" ] }, { "cite": "450 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524660 ], "year": 1994, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0165-01" ] }, { "cite": "321 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755105, 4752334, 4755632, 4751958, 4758943 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0084-01", "/nc/312/0084-05", "/nc/312/0084-02", "/nc/312/0084-04", "/nc/312/0084-03" ] }, { "cite": "319 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523106 ], "year": 1984, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0480-01" ] }, { "cite": "418 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "332 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508082 ], "year": 1992, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0141-01" ] }, { "cite": "461 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "3", "parenthetical": "quoting Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992)" }, { "page": "4", "parenthetical": "quoting United Lab., Inc. v. Kuykendall, 102 N.C. App. 484, 494, 403 S.E.2d 104, 111 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993) (citations omitted)" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914394 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "149", "parenthetical": "quoting Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992)" }, { "page": "151", "parenthetical": "quoting United Lab., Inc. v. Kuykendall, 102 N.C. App. 484, 494, 403 S.E.2d 104, 111 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993) (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0145-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "323 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "allowing attorney fees for bankruptcy, foreclosure, and receivership actions under N.C. Gen. Stat. \u00a7 6-21.2, since such activity was connected to the collection of the note" } ], "opinion_index": 0 }, { "cite": "319 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "656", "parenthetical": "allowing attorney fees for bankruptcy, foreclosure, and receivership actions under N.C. Gen. Stat. \u00a7 6-21.2, since such activity was connected to the collection of the note" }, { "page": "655" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521343 ], "year": 1984, "pin_cites": [ { "page": "228", "parenthetical": "allowing attorney fees for bankruptcy, foreclosure, and receivership actions under N.C. Gen. Stat. \u00a7 6-21.2, since such activity was connected to the collection of the note" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0221-01" ] }, { "cite": "525 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "487", "parenthetical": "multiple state law and federal civil rights claims litigated together could fairly be charged under 42 U.S.C.A. Sec. 1988" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241064 ], "year": 2000, "pin_cites": [ { "page": "596", "parenthetical": "multiple state law and federal civil rights claims litigated together could fairly be charged under 42 U.S.C.A. 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App.", "case_ids": [ 8526418 ], "year": 1984, "pin_cites": [ { "page": "444", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0439-01" ] }, { "cite": "87 S.E. 633", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1916, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "170 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661462 ], "year": 1916, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/170/0662-01" ] }, { "cite": "58 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1950, "pin_cites": [ { "page": "346" }, { "page": "348" } ], "opinion_index": 0 }, { "cite": "231 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631109 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "569-70" }, { "page": "571-72" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0566-01" ] }, { "cite": "462 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "243" }, { "parenthetical": "emphasis supplied" }, { "page": "243" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. 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App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520465 ], "year": 1993, "pin_cites": [ { "page": "21", "parenthetical": "quoting Prosser, supra, \u00a7 87, at 619 (footnote omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0001-01" ] }, { "cite": "331 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "721", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526547 ], "year": 1985, "pin_cites": [ { "page": "35", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0030-01" ] }, { "cite": "982 F.Supp. 355", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 11883804 ], "weight": 3, "year": 1997, "pin_cites": [ { "parenthetical": "need to install wells to monitor water quality presented jury question whether defendant's invasion was substantial" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/f-supp/982/0355-01" ] }, { "cite": "236 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "293 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562517 ], "year": 1977, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0201-01" ] }, { "cite": "519 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "A defendant's use of state-of-the-art technology or the fact that he was not negligent in the design or construction of his facility are not defenses to a nuisance claim" } ], "opinion_index": 0 }, { "cite": "351 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155846 ], "year": 1999, "pin_cites": [ { "parenthetical": "A defendant's use of state-of-the-art technology or the fact that he was not negligent in the design or construction of his facility are not defenses to a nuisance claim" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0040-01" ] }, { "cite": "502 S.E.2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "130 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11464960 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/130/0018-01" ] }, { "cite": "124 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1962, "pin_cites": [ { "page": "813" }, { "page": "814" }, { "parenthetical": "citations omitted" }, { "page": "814" }, { "page": "814" } ], "opinion_index": 0 }, { "cite": "256 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574237 ], "weight": 4, "year": 1962, "pin_cites": [ { "page": "617" }, { "page": "618" }, { "page": "619" }, { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0611-01" ] }, { "cite": "77 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1953, "pin_cites": [ { "page": "689" }, { "page": "689", "parenthetical": "citations omitted" }, { "page": "689", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "238 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602245 ], "weight": 3, "year": 1953, "pin_cites": [ { "page": "193" }, { "page": "194" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0185-01" ] }, { "cite": "447 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "498", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522824 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "167", "parenthetical": "citation omitted" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0155-01" ] } ], "analysis": { "cardinality": 1642, "char_count": 50743, "ocr_confidence": 0.772, "pagerank": { "raw": 6.556423807304277e-07, "percentile": 0.961242141916382 }, "sha256": "1494ea46c88b726dd49f3b350f948569a9be9f427e3de7ee7730e5354a1fb944", "simhash": "1:8f415ce82e6ee878", "word_count": 7888 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUNTER concur." ], "parties": [ "WHITESIDE ESTATES, INC., Plaintiff v. HIGHLANDS COVE, L.L.C., Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nHighlands Cove, L.L.C. (\u201cdefendant\u201d) appeals from judgment entered upon the verdict of the jury, the trial court\u2019s order denying motion for judgment notwithstanding the verdict and/or new trial, and the trial court\u2019s order awarding attorney and expert witness fees. We affirm the judgment and remand for a new trial on damages only, and we affirm the trial court\u2019s order awarding fees in part and reverse in part.\nAt the outset we note that the appeal from the judgment and the trial court\u2019s order denying defendant\u2019s motion for judgment notwithstanding the verdict and/or new trial, COAOO-1378, was filed separate from the appeal of the order awarding attorney and expert witness fees, COA00-1005. These inter-related appeals were consolidated for hearing ex mero motu. See N.C.R. App. P. 40. Both appeals are decided within this opinion.\nI. Facts\nDefendant purchased approximately 400 acres of real property that adjoins and is upstream from property owned by Whiteside Estates, Inc. (\u201cplaintiff\u2019) in March of 1998. Defendant acquired its property to construct residential units and a golf course.\nPlaintiff, a corporation whose sole shareholders are O.E. Young, Jr. (\u201cYoung\u201d), his wife Mary Lou Young, and their five children, owns approximately 265 acres. Plaintiffs property is directly downstream from defendant\u2019s development. In 1957, Young constructed a dam on Grassy Camp Creek (\u201ccreek\u201d) which ran through the property, forming an eighteen-acre lake known as Young Lake (\u201clake\u201d). The creek traverses both defendant\u2019s and plaintiff\u2019s property.\nThe Land Quality Section of the North Carolina Department of Environment and Natural Resources (\u201cDENR\u201d) issued defendant a Sedimentation and Erosion Control permit and approved their plan to develop its property on or about 29 July 1998. Defendant began construction shortly thereafter.\nThe evidence tended to show that significant rainfall caused sediment from defendant\u2019s land-disturbing activities to flow into the creek in October 1998. Plaintiff\u2019s lake and creek collected colloidal material after that first rainfall and every subsequent rainfall, impacting the lake water\u2019s quality, damaging the creek, and invading plaintiff\u2019s use and enjoyment thereof.\nThe North Carolina Division of Land Resources (\u201cNCDLR\u201d) inspected the project almost weekly during defendant\u2019s construction, compiling numerous reports. Although no statutory \u201cNotices of Violation\u201d were issued pursuant to G.S. \u00a7 113A-61.1, several reports indicated that: (1) defendant\u2019s activities utilized \u201cinsufficient measures to retain sediment on site,\u201d (2) defendant failed \u201cto take reasonable measures,\u201d on site during construction, and (3) defendant\u2019s site was not in compliance with the Sedimentation Pollution Control Act (\u201cSedimentation Act\u201d).\nPlaintiff sought and obtained a temporary restraining order. At the return hearing on the order, plaintiff sought to enjoin defendant\u2019s project. The trial court denied the injunction. Plaintiff then filed a complaint seeking damages for nuisance, trespass, and violation of the Sedimentation Act on 31 March 1999. Defendant answered denying all allegations and counterclaimed for abuse of process. At the close of plaintiff\u2019s evidence and again at the close of all the evidence, defendant moved for a directed verdict: Both motions were denied. The jury returned a verdict in plaintiffs favor of $500,000.00 on 6 March 2000. The jury\u2019s verdict did not segregate the damages between plaintiffs three claims. The trial court entered judgment thereon. Defendant moved for judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court denied the motion on 30 May 2000. Defendant appeals.\nPlaintiffs counsel subsequently moved for attorney fees in the amount of $67,246.50, expenses in the amount of $3,500.16, and expert witness fees in the amount of $37,353.13 pursuant to G.S. \u00a7 113A-66(c). Copies of counsel\u2019s invoices for legal services, an affidavit of William Clarke, plaintiff\u2019s counsel, copies of invoices for plaintiff\u2019s three expert witnesses, and an affidavit of J. David Young, managing agent for plaintiff, were filed in support of the motion.\nPlaintiff amended its motion for attorney and expert witness fees by reducing the amount requested for attorney fees by $7,700.00, for work involving the same parties but for another matter, on 8 May 2000. The amendment included a second affidavit of William Clarke setting forth the hourly rates for the legal services rendered, the fact that the hourly rates charged were commensurate with the type of work involved, and are within the range of such fees and charges customarily charged in the community.\nOn 30 May 2000, the trial court entered an order awarding plaintiff attorney fees in the amount of $58,546.50, less than plaintiff\u2019s requested amount, and expert witness fees in the amount of $37,353.13. Defendant appeals.\nII. Issues\nDefendant assigns the following errors on appeal: (1) the trial court erred in denying defendant\u2019s motions for a directed verdict and its motion for judgment notwithstanding the verdict or, alternatively, a new trial because the evidence was insufficient to sustain a judgment on plaintiff\u2019s three claims for relief; (2) the trial court erred when it rejected defendant\u2019s proposed jury instructions; (3) the jury verdict was excessive and reflected a disregard for the jury instructions and was influenced by passion; (4) the trial court erred by admitting into evidence the testimony of two plaintiff witnesses and certain demonstrative evidence; and (5) the trial court erred in granting plaintiff\u2019s attorney and expert witness fees.\nIII. Sufficiency of the Evidence\nA. Nuisance\nDefendant argues that plaintiff presented no evidence that it interfered with corporate plaintiffs use and enjoyment of its property.\n\u201cTo recover in nuisance, plaintiffs must show an unreasonable interference with the use and enjoyment of their property.\u201d Jordan v. Foust Oil Co., Inc., 116 N.C. App. 155, 167, 447 S.E.2d 491, 498 (1994) (citation omitted). The interference or invasion which subjects one to liability may be intentional or unintentional. Morgan v. High Penn Oil Co., 238 N.C. 185, 193, 77 S.E.2d 682, 689 (1953).\nUnintentional nuisance occurs when defendant\u2019s conduct is negligent, reckless, or ultrahazardous. Id. Intentional nuisance, on the other hand, focuses on the unreasonableness of the interference. Watts v. Pama Mfg. Co., 256 N.C. 611, 617, 124 S.E.2d 809, 813 (1962); see also David A. Logan & Wayne A. Logan, North Carolina Torts, \u00a7 28.10, at 605 n.13 (1996) (A private nuisance may be created or maintained without negligence). \u201cA 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.\u201d Morgan, 238 N.C. at 194, 77 S.E.2d at 689 (citations omitted); Parker v. Barefoot, 130 N.C. App. 18, 502 S.E.2d 42 (1998), rev. on other grounds, 351 N.C. 40, 519 S.E.2d 315 (1999) (A defendant\u2019s use of state-of-the-art technology or the fact that he was not negligent in the design or construction of his facility are not defenses to a nuisance claim).\nAn intentional invasion or interference occurs when a person acts with the purpose to invade another\u2019s interest in the use and enjoyment of their land, or knows that it will result, or will substantially result. Morgan, 238 N.C. at 194, 77 S.E.2d at 689 (citations omitted).\nAn intentional invasion or interference, however, is not always unreasonable. Watts, 256 N.C. at 618, 124 S.E.2d at 814. In Watts, our Supreme Court listed factors to be considered in assessing whether an intentional interference is unreasonable:\nthe surroundings and conditions under which defendant\u2019s conduct is maintained, the character of the neighborhood, the nature, utility and social value of defendant\u2019s operation, the nature, utility and social value of plaintiffs\u2019 use and enjoyment which have been invaded, the suitability of the locality for defendant\u2019s operation, the suitability of the locality for the use plaintiffs make of their property, the extent, nature and frequency of the harm to plaintiffs\u2019 interest, priority of occupation as between the parties, and other considerations arising upon the evidence. No single factor is decisive; all the circumstances in the particular case must be considered.\nId. (citations omitted); See also Pendergrast v. Aiken 293 N.C. 201, 217, 236 S.E.2d 787, 797 (1977).\nTo be actionable, \u201c[t]he interference must be substantial and unreasonable. Substantial simply means a significant harm to the plaintiff and unreasonably means that it would not be reasonable to permit the defendant to cause such an amount of harm intentionally without compensating for it.\u201d W. Page Keeton et al., Prosser and Keeton on the Law of Torts, \u00a7 88, at 626 (5th ed. 1984) (emphasis supplied).\nOnce plaintiff establishes that the invasion or intrusion is unreasonable, plaintiff must prove the invasion caused substantial injury to its property interest. Watts, 256 N.C. at 619, 124 S.E.2d at 814; Rudd v. Electrolux Corp., 982 F.Supp. 355 (M.D.N.C. 1997) (need to install wells to monitor water quality presented jury question whether defendant\u2019s invasion was substantial). \u201cAn upper riparian landowner\u2019s unreasonable use of water quantity or diminution of its quality permits a lower riparian owner to maintain a civil action in nuisance or trespass to land.\u201d Biddix v. Henredon Furniture Industries, Inc., 76 N.C. App. 30, 35, 331 S.E.2d 717, 721 (1985) (citations omitted). \u201cThe sedimentation of streams, lakes and other waters of this State constitutes a major pollution problem.\u201d N.C. Gen. Stat. \u00a7 113A-51 (1975). \u201c \u2018The ownership or rightful possession of land necessarily involves the right not only to the unimpaired condition of the property itself, but also to some reasonable comfort and convenience in its occupation.\u2019 \u201d Kaplan v. Prolife Action League of Greensboro, 111 N.C. App. 1, 21, 431 S.E.2d 828, 838 (1993) (quoting Prosser, supra, \u00a7 87, at 619 (footnote omitted)).\nHere, it is uncontroverted that the plaintiff is the owner of the property, and that defendant engaged in land-disturbing activity. Plaintiff presented evidence that defendant began clearing its property in July of 1998. The evidence tended to show that after significant rainfall, sediment from those activities flowed into plaintiff\u2019s creek and lake, despite defendant\u2019s State-approved erosion control measures. Plaintiff entered into evidence numerous photographs of the lake\u2019s condition before and after defendant\u2019s land-disturbing activity. Before defendant\u2019s development began the lake was crystal clear. After defendant\u2019s development commenced the lake had the appearance of coffee with cream. There is substantial evidence that defendant\u2019s activities were the major, if not the sole, source of the runoff.\nPlaintiff offered expert testimony that described the decreased level of water quality in the lake as well as increased levels of erosion and sediment in its creek. Water sampling test results tended to show that turbidity levels (a measurement of the amount of light bouncing off suspended particles in water) dramatically increased. Dr. Ken Wagner (\u201cWagner\u201d) also testified that defendant\u2019s sedimentation and erosion control plan was inadequate, \u201ccausing high turbidity\u201d in plaintiff\u2019s creek and lake. He also described the harm caused to aquatic life in the lake.\nInspector Mike Goodson (\u201cGoodson\u201d) inspected defendant\u2019s project for compliance with its plan, and testified as defendant\u2019s witness that sedimentation had left the site and entered into the creek. Goodson also testified that although he did inspect defendant\u2019s property, he never \u201cwalk[ed] to the property boundary\u201d to see if the sediment that left defendant\u2019s property damaged plaintiff\u2019s property. He further testified that he never sampled the water quality in plaintiff\u2019s lake.\nPlaintiff\u2019s shareholders testified that for forty years the lake and creek had been used for fishing, swimming, boating, and other recreational uses. After defendant\u2019s land-disturbing activities started, the water became polluted with sediment and the lake was unfit for such activities. Defendant contends that corporate plaintiff presented no evidence of harm to the corporation: \u201cPlaintiff offered no testimony of impairment of business relationships, lost rentals, lost sales, or lost revenues of any kind . . . Plaintiff put forth no evidence that the fair market value of its asset had depreciated because of the alleged injuries.\u201d Defendant asserts that the evidence failed to support a corporate nuisance claim. We disagree.\nPlaintiff\u2019s corporate charter lists as one of its purposes and objects to \u201cbuy, sell, exchange . . . water rights and privileges; to build, construct, operate, maintain, . . . reservoirs to impound water,....\u201d Sedimentation deposits and collodial suspended material substantially damage water quality and impact the above mentioned corporate use.\nA plaintiff need not establish loss of fair market value in the property or lost rentals, sales, or revenues to show sufficient injury to support damages in nuisance. These items are one method of measuring damages after substantial injury is proven, not a method for determining injury. Plaintiff must show that the injury was substantial or significant. Watts, 256 N.C. at 619, 124 S.E.2d at 814. Here, plaintiff\u2019s shareholders testified that the injury to its lake and creek was substantial and significant.\nThe record supports the jury\u2019s finding that substantial evidence exists that defendant intentionally caused and allowed colloidal material to flow into plaintiff\u2019s creek and lake to such a degree as to substantially and unreasonably interfere with plaintiff\u2019s use and enjoyment of its land. The evidence was also sufficient for the jury to conclude that the injury to plaintiff\u2019s property was substantial and significant to recover damages.\nB. Trespass\nDefendant argues that the evidence failed to support a claim for trespass because no suspended solids were deposited on the land, \u201cbut rather continued downstream as water in the lake was released.\u201d Defendant asserts that since there was no evidence that sediment settled in the lake, and that \u201cthere is no property right in any particular particle of water or in all of them put together\u201d there can be no trespass. Smith v. Town of Morganton, 187 N.C. 801, 802, 123 S.E.2d 88, 89 (1924). Defendant also contends that if there is sediment on plaintiff\u2019s property there is no evidence that defendant caused it.\nA fuller contextual quotation from Smith v. Town of Morganton reveals defendant\u2019s error with respect to property rights in water.\nthe right to have a natural water course continue its physical existence upon one\u2019s property is as much property as is the right to have the hills and forests remain in place, and while there is no property right in any particular particle of water or in all of them put together, a riparian proprietor has the right of their flow past his lands for ordinary domestic, manufacturing, and other lawful purposes, without injurious or prejudicial interference by an upper proprietor, (citation omitted) ... [A] riparian proprietor is entitled to the natural flow of a stream running through or along his land in its accustomed channel, undiminished in quantity and unimpaired in quality, except as may be occasioned by the reasonable use of the water by other like proprietors, (citations omitted).\nId. at 803, 123 S.E.2d at 89.\nDefendant\u2019s argument that since there was no evidence that any suspended material in the lake settled bars recovery in trespass is misplaced. First it fails to address the evidence that there was sediment in and about plaintiff\u2019s creek caused by defendant\u2019s land-disturbing activity. Second, Wagner testified that \u201cthere is a fine coating of sediment on the bottom [of the lake]. It\u2019s not much... but that fine stuff could get resuspended by wind . . . and cause high turbidity.\u201d\n\u201cThe elements of a trespass claim are that plaintiff was in possession of the land at the time of the alleged trespass; that defendant made an unauthorized, and therefore unlawful, entry on the land; and that plaintiff was damaged by the alleged invasion of his rights of possession.\u201d Foust Oil Co., Inc., 116 N.C. App. at 166, 447 S.E.2d at 498 (citing Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952)).\nViewing the evidence in the light most favorable to the plaintiff, we hold that there is sufficient evidence for the jury to conclude that defendant\u2019s land disturbing activities caused sediment to unlawfully enter upon plaintiff\u2019s property causing damage and injury.\nC. Sedimentation Pollution Control Act\nAlthough we find that the nuisance and trespass claims are sufficient to show damages, we address defendant\u2019s assignment of error regarding the statutory claim. The Sedimentation Act contains an attorney fee and expense shifting clause. N.C. Gen. Stat. \u00a7 113A-66(a)(4) (1999). The trial court awarded plaintiff attorney and expert witness fees following the jury\u2019s finding that defendant violated the Sedimentation Act.\nDefendant argues that it did not violate the Sedimentation Act nor did it cause damage or injury to plaintiff\u2019s property. We disagree.\nThe act expressly authorizes a private action for damages:\n\u201c[a]ny person injured by a violation of [the Sedimentation Act] ... or by the initiation or continuation of a land-disturbing activity for which an erosion control plan is required other than in accordance with the terms, conditions, and provisions of an approved plan, may bring a civil action [seeking damages] against the person alleged to be in violation . . .\nN.C. Gen. Stat. \u00a7 113A-66(a) (1999).\nDefendant correctly argues that \u201c[t]o be recoverable, the damages sought by the plaintiffs must be \u2018caused by the violation.\u2019 \u201d Huberth v. Holly, 120 N.C. App. 348, 353, 462 S.E.2d 239, 243 (1995). This Court in Holly found no violation of the Sedimentation Act because there was no evidence that the violation caused the loss of trees or groundcover. Id. (emphasis supplied).\nHere, we find there was sufficient evidence for the jury to conclude that defendant\u2019s violation of the Sedimentation Act caused sediment to damage plaintiff\u2019s creek and lake. Although no statutory \u201cNotices of Violation\u201d were issued and Inspector Goodson testified that defendant had \u201cdone as good a job as they can do,\u201d substantial evidence proves that sediment left defendant\u2019s site and caused injury to plaintiff.\nGoodson testified that \u201cthere were times when I felt like they weren\u2019t meeting the plan and steps were taken to correct that.\u201d Goodson stated that he would \u201cscream and yell\u201d at the contractors to correct the problems. Goodson also testified that during at least one inspection a \u201cbasin had filled up and some sediment had gone ... into grassy camp [creek].\u201d He further testified that he never walked to the plaintiff\u2019s property to see if sediment that migrated into the creek on defendant\u2019s property traveled through the creek or lake onto plaintiff\u2019s property.\nAn inspection report dated 6 October 1998 stated that there were \u201c[ijnsufficient measures to retain sediment on site, G.S. 113A-57(3).\u201d This report also cited defendant\u2019s \u201c[fjailure to take all reasonable measures, 15A NCAC 4B.0005\u201d and that the site was not in compliance with the Sedimentation Act and the rules. Goodson noted defendant\u2019s need to \u201cinstall measures to retain sediment within property boundaries. Install silt fence per approved plan.\u201d The report stated that \u201caccess bridges across 13 & 14 fairways are not adequately protected and stabilized, silt fence . . . not properly toed in, sediment is leaving site at end of #15 fairway.\u201d The report concluded that these items must be addressed immediately.\nA report on 7 December 1998 noted that the site is not currently in compliance with the Sedimentation Act and the rules. The development had failed \u201cto follow approved plan, G.S. 113A-61.1.\u201d The report required defendant to \u201cinstall measures per approved plan\u201d as corrective actions needed. Additional comments noted that \u201c[sediment trap #SP18FR2 has not been installed per plan . . . Areas in PH.I have not been stabilized per construction schedules discussed on 12/4/98.\u201d\nAnother report dated 16 December 1998 also concluded that the development was not in compliance with the Sedimentation Act and rules. The report found that (1) the site had an \u201cinadequate buffer zone, G.S 113A-57(1);\u201d (2) it failed \u201cto maintain erosion control measures, 15A NCAC 4B.0013;\u201d (3) there were \u201cinsufficient measures to retain sediment on site, G.S. 113A-57;\u201d (3) and that sedimentation damage has occurred since the last inspection. The report required the defendant to \u201cre-install buffer-zone at bridge site on #10.\u201d The report noted that the \u201csilt fence ... is in disrepair at #10 bridge site. Need to seed and mulch around this area to reestablish buffer.\u201d\nViewed in the light most favorable to the plaintiff, we hold that there was sufficient evidence to find defendant violated the Sedimentation Act and damaged plaintiff.\nIV. Verdict Amount\nDefendant argues that the $500,000.00 jury verdict was excessive, reflected a disregard for the trial court\u2019s jury instructions, and based on passion or prejudice. Defendant contends that evidence of the cost of repair was speculative, conjectural, and lacked reasonable certainty. Defendant requests that we modify the judgment to $20,000.00, \u201cthe maximum amount that could properly have been awarded.\u201d Alternatively, defendant requests that we reverse judgment and order a new trial.\nThe trial court\u2019s jury instruction included the following: \u201cIn this case you will determine actual damages by determining the reasonable costs to the plaintiff of expenses shown by the evidence necessary for repairing or restoring the plaintiff\u2019s property. You may not speculate in regard to future damages, if any.\u201d\nOnce liability is established for an abatable or temporary nuisance, the remedy includes money damages. Phillips v. Chesson, 231 N.C. 566, 569-70, 58 S.E.2d 343, 346 (1950). For an abatable nuisance, plaintiff may only recover damages up to the time of the complaint or trial. Id.; see also Webb v. Virginia-Carolina Chemical Co., 170 N.C. 662, 666, 87 S.E. 633, 635 (1916). Future damages must be recovered in successive actions. Id. \u201cThe continued migration of contaminants remains a nuisance and when each contaminant crosses onto an adjoining property, there is a new trespass and injury.\u201d Electrolux Corp., 982 F.Supp at 369. \u201cThe kinds of damages recoverable include: diminished rental value; reasonable costs of replacement or repair; restoration of the property to its pre-nuisance condition; and other added damages for incidental losses.\u201d Id. at 372 (citing Phillips, 231 N.C. at 571-72, 58 S.E.2d at 348). \u201cSome commentators indicate that incidental losses might include, under appropriate circumstances, recovery of plaintiffs reasonable costs incurred to prevent future injury or abate the nuisance or its harmful effects.\u201d Id. at n.12 (citing Prosser, supra, \u00a7 89 at 640). \u201cWhere the nuisance is the kind that does more or less tangible harm to the premises, the cost of repair or restoration may be the appropriate measure of damages, . . . .\u201d Prosser, supra, \u00a7 89, at 639 (quoting Dobbs, Remedies, 1973, 332-35).\nPlaintiff is entitled to compensation to the extent that he has established damages \u201c \u2018with as much certainty as the nature of the tort and the circumstances permit.\u2019 \u201d Largent v. Acuff, 69 N.C. App. 439, 444, 317 S.E.2d 111, 114 (1984) (citation omitted). Proof of damages requires \u201c \u2018that the plaintiff adduce some relevant datum from which a \u2018just and reasonable\u2019 estimate of the amount might be drawn . . . [This] does not require proof of damages with mathematical precision.\u2019 \u201d Id.\nAt bar, plaintiff offered expert testimony of the cost to repair and restore its creek and lake. All of the approaches assumed that the source, defendant\u2019s activities, would be adequately controlled. If not controlled, repairing and restoring plaintiff\u2019s property would be ineffective.\nWagner testified that cleaning the lake would cost $20,000.00. He explained that \u201cof course, you only want to do that once you\u2019ve controlled the source.\u201d\nControlling the source involved repairing and restoring the creek and controlling the amount of sedimentation emanating from defendant\u2019s property. Wagner discussed two procedures to restore the creek. One approach would cost between $75,000.00 and $150,000.00. The other approach would \u201cbe, roughly, double the cost of the other approach.\u201d The evidence adduced to repair and restore the lake and creek on plaintiff\u2019s property ranged from $95,000.00 to $320,000.00. We conclude that plaintiff\u2019s evidence has failed to establish, with as much certainty as the nature of the circumstances permit, the reasonable estimate of the cost to repair and restore plaintiff\u2019s lake and creek to its pre-nuisance condition.\nWagner testified concerning the cost of adequate detention to control the erosion coming off defendant\u2019s property. He testified that adequate detention would cost between $1,400,000.00 and $4,000,000.00. Defendant argues that Wagner\u2019s testimony about controlling and detaining the source on defendant\u2019s property was evidence of defendant\u2019s preventing injuries or \u201cat most evidence of costs defendant should have incurred\u201d and \u201cirrelevant to the issue of how much plaintiff was entitled to recover\u201d in damages. We agree that Wagner\u2019s testimony about the cost of controlling the sedimentation coming off defendant\u2019s property was evidence of defendant\u2019s costs on his property. We note that the evidence about controlling the erosion coming off defendant\u2019s property, however, was not irrelevant to the determination of plaintiff\u2019s damages. Plaintiff was entitled to the cost to control that source only if necessary to repair and restore the creek and lake. No evidence at trial established with reasonable certainty plaintiff\u2019s costs to control, on plaintiff\u2019s property, the source of sediment coming off defendant\u2019s property.\nWagner testified that defendant\u2019s sedimentation and erosion control plan was inadequate. He also testified that if nothing were done to prevent and control sediment coming down the creek from defendant\u2019s property, the repairs of the lake and creek on plaintiff\u2019s property would be ineffective. The jury could have reasonably concluded that in order to restore and repair plaintiff\u2019s lake and creek, plaintiff would have to take adequate and reasonable measures to control the source on its property.\nThe only testimony regarding the cost to control the source of sedimentation was testimony by Wagner. He testified that \u201cthey [defendant] need a lot more detention and they need some sort of auxiliary system to remove the colloidal material that are causing high turbidity.\u201d He estimated defendant\u2019s cost between 1,400,000.00 and 4,000,000.00.\nWe hold that there is insufficient evidence in the record of the reasonable estimate of costs to repair and restore the creek and lake to its pre-nuisance condition with as much certainty as the circumstances require. The record contains no evidence regarding the plaintiff\u2019s cost to control the source on its property. We remand for a new trial on damages only. N.C. Gen. Stat. \u00a7 1-297 (1969).\nV. Jury Inst,ructions\nDefendant contends the trial court erred by refusing to give defendant\u2019s four additionally requested jury instructions. We disagree.\nWhen a party\u2019s requested jury instruction is correct and supported by the evidence, the trial court is required to give the instruction. The instructions need not be given exactly as submitted, but they must be given in substance. State v. Davis, 291 N.C. 1, 229 S.E.2d 285 (1976); Haymore v. Thew Shovel Co., 116 N.C. App. 40, 49, 446 S.E.2d 865, 871 1994 (citation omitted). The trial court has discretion to refuse instructions based on erroneous statements of the law. State v. Agnew, 294 N.C. 382, 395-96, 241 S.E.2d 684, 692 (citations omitted), cert denied, 439 U.S. 830, 58 L. Ed. 2d 124 (1978).\nA. Corporate Plaintiff\nDefendant asked the trial co\u00fcrt to instruct the jury as follows:\nthere has also been evidence offered by the individuals O.E. Young, David Young and Mary Lou Young tending to show that they have lost the use of the lake for swimming, fishing, frogging, boating and the general pleasure of enjoying the view of the lake and its use by themselves and their friends, relatives and guests. I charge you in this regard that the corporation may not recover for any personal loss by these individuals, or any other individuals. Their testimony should be considered by you only in connection with the history of the lake or its general fitness for use for these purposes, if at all, unless they were, in so using the lake, doing so in pursuit of some corporate purpose.\nThe trial court did not give this instruction. Defendant argues that any evidence from plaintiff\u2019s shareholders regarding the condition of the lake was not evidence of damage sustained by the plaintiff. This argument is without merit. Plaintiff\u2019s shareholder\u2019s testimony about the condition of the lake goes directly to the question of injury sustained to the property. Any relevant evidence establishing injury to the plaintiff\u2019s property was appropriate.\nB. Preventive Measures bv Defendant\nDefendant requested the trial court charge the jury that \u201cpreventive measures may not be considered by you as any measure of damage suffered by plaintiff.\u201d The trial court\u2019s instruction included the following: \u201cIn this case you will determine actual damages by determining the reasonable costs to the plaintiff of expenses shown by the evidence necessary for repairing or restoring the plaintiff\u2019s property. You may not speculate in regard to future damages, if any.\u201d Any evidence offered by the plaintiff with respect to adequately detaining the source of sediment leaving defendant\u2019s property is not necessarily evidence of preventive measures. Plaintiff would be entitled to costs for controlling the source of sediment on defendant\u2019s property when it impacts plaintiff\u2019s property if necessary to repair and restore the creek and lake. If defendant does not adequately detain sediment from leaving its property or prevent injury to plaintiff\u2019s property, plaintiff can take reasonable measures to protect its property in order to repair and restore its lake and creek.\nC. Aesthetic Damages\nDefendant requested that the trial court instruct the jury in part that \u201cI charge you that there has been no evidence of a valuation or amount of damage caused by this [aesthetic] injury.\u201d Whether evidence has been presented or not is a question for the jury. This requested instruction was erroneous. There was sufficient evidence of plaintiff\u2019s injury to sustain an award for damages.\nD. Increase Sedimentation Charge\nDefendant requested the additional instruction that \u201csediment being deposited now [on plaintiff\u2019s property] is no more than, or not measurable more than in the past.\u201d Both sides presented their evidence. It was for the jury, as fact finder, to determine from the evidence the volume of sediment that flowed onto plaintiff\u2019s property. The amount of sediment affecting plaintiff\u2019s property goes to the issue of reasonableness of the interference or invasion and the significance of the injury.\nThe trial court\u2019s instructions to the jury sufficiently defined the law and were supported by the evidence with respect to every substantive element of the case. Defendant\u2019s assignments of error are overruled.\nVI. Testimony and Demonstrative Evidence\nDefendant contends that the introduction of turbidity samples from the lake and creek water into evidence was error. Defendant claims that the instrument used by plaintiff\u2019s expert witness John Boaze (\u201cJohn\u201d) was not properly calibrated.\nThe admissibility of scientific evidence is governed by Rules 702 and 703 of the North Carolina Rules of Evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 702-703 (1999). \u201cWhether scientific opinion evidence is sufficiently reliable and relevant is a matter entrusted to the sound discretion of the trial court.\u201d State v. Spenser, 119 N.C. App. 662, 664, 459 S.E.2d 812, 814 (1995) (citation omitted). After a voir dire hearing, the trial court determined that John\u2019s testimony about turbidity sampling was reliable. Sufficient evidence in the record supports the trial court\u2019s finding.\nJohn testified that he has twenty-eight years experience taking water samples after obtaining his master\u2019s degree. He had prepared annual reports of water quality for the Army Corps of Engineer's investigating impacts on stream water. At the time of trial, John was monitoring turbidity levels during the construction of state route 52 in Tennessee.\nAdditionally, defense counsel cross-examined John. Defendant offered no evidence of turbidity readings. Nor did defendant offer any evidence that the measurements were inaccurate. Accordingly, we find no abuse of discretion.\nDefendant also argues that five jars of water with different turbidity levels should have been excluded because no one authenticated the evidence as being the water in plaintiff\u2019s lake. After voir dire of plaintiff\u2019s expert witness Pam Boaze (\u201cPam\u201d), the trial court allowed the five jars into evidence for illustrative purposes only to demonstrate what various levels of turbidity look like. Pam authenticated the evidence not as water from the lake, but as demonstrative evidence to assist the jury in determining different levels of turbidity. The exhibits were not introduced as substantive evidence. This assignment of error is overruled.\nVIL Attorney and Expert Witness Fees\nDefendant argues on appeal that the trial court\u2019s granting of attorney and expert witness fees: (1) erroneously included expenses incurred in prosecuting its common law claims and defending its counterclaim, (2) were not supported by the evidence and findings of fact, and (3) the court improperly awarded expert witness fees without proof that the witnesses were subpoenaed.\nA. Apportionment of Fees\nThe general rule is that attorney fees may not be recovered by the successful litigant as damages or a part of the court costs, unless expressly authorized by statute or a contractual obligation. Stillwell Enterprises, Inc. v. Interstate Equip. Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814 (1980).\nN.C. Gen. Stat. \u00a7 113A-66(c) (1999) provides:\nThe court, in issuing any final order in any action brought pursuant to this section may award costs of litigation (including reasonable attorney and expert-witness fees) to any party, whenever it determines that such an award is appropriate.\nThis section expressly allows attorney and expert witness fees for civil actions brought under the Sedimentation Pollution Control Act of 1973 (\u201cSedimentation Act\u201d) as an exception to the general rule. N.C. Gen. Stat. \u00a7 113A-50 et. sea.\nDefendant correctly argues that fees are not recoverable for plaintiffs common law nuisance and trespass claim nor in defending against a counterclaim for abuse of process. Holly, 120 N.C. App. at 354, 462 S.E.2d at 243. However, where all of plaintiffs claims arise from the same nucleus of operative facts and each claim was \u201cinextricably interwoven\u201d with the other claims, apportionment of fees is unnecessary. Okwara v. Dillard Dep\u2019t Stores, Inc., 136 N.C. App. 587, 596, 525 S.E.2d 481, 487 (2000) (multiple state law and federal civil rights claims litigated together could fairly be charged under 42 U.S.C.A. Sec. 1988). This Court applies the reasonable relation test: \u201creasonableness, not arbitrary classification of attorney activity, is the key factor under all our attorneys\u2019 fees statutes\u201d in awarding fees for attorney activity connected with that under the statute. Coastal Prod. Credit Ass\u2019n v. Goodson Farms, Inc., 70 N.C. App. 221, 228, 319 S.E.2d 650, 656, rev. denied, 312 N.C. 621, 323 S.E.2d 922 (1984) (allowing attorney fees for bankruptcy, foreclosure, and receivership actions under N.C. Gen. Stat. \u00a7 6-21.2, since such activity was connected to the collection of the note).\nHere, all three claims were based on the same intertwined nucleus of facts, defendant\u2019s land-disturbing activity and its impact on plaintiff\u2019s property. The trial court observed the evidence presented in the course of six days of trial as well as the parties\u2019 arguments, motions, and responses. On 8 May 2000, plaintiff\u2019s attorney amended its motion to remove fees for services involving the same parties in an unrelated matter. We find competent evidence in the record to hold that all three claims arose from a common nucleus of facts making apportionment of the fees unnecessary and unrealistic.\nB. Showing of Reasonableness\nDefendant argues that to support a discretionary award of attorney fees, there must be evidence and findings of fact to support the reasonableness of the award. Coastal Prod., 70 N.C. at 226, 319 S.E.2d at 655. \u201c \u2018Statutory interpretation properly begins with an examination of the plain words of the statute.\u2019 \u201d West v. Tilley, 120 N.C. App. 145, 149, 461 S.E.2d 1, 3 (1995) (quoting Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992)). The allowance of attorney fees under the Sedimentation Act is expressly in the discretion of the trial court. N.C. Gen. Stat. \u00a7 113A-66(c); see McDaniel v. North Carolina Mut. Life Ins. Co., 70 N.C. App. 480, 483, 319 S.E.2d 676, 678, disc. review denied, 312 N.C. 84, 321 S.E.2d 897 (1984). We review the trial court\u2019s award under an abuse of discretion standard. Wachovia Bank of N. C., N.A. v. Bob Dunn Jaguar, Inc., 117 N.C. App. 165, 175, 450 S.E.2d 527, 533 (1994). To show an abuse of discretion, defendant must prove that the trial court\u2019s ruling is \u201cmanifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d Robinson v. Shue, 145 N.C. App. 60, 65, - S.E.2d -, - (July 17, 2001) (No. 00-1059) (citing State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988); see also Porterfield v. Goldkuhle, 137 N.C. App. 376, 528 S.E.2d 71 (2000)).\nDefendant argues that it is an abuse of discretion to grant attorney fees without making appropriate findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney. Brookwood Unit Ownership Ass\u2019n. v. Delon, 124 N.C. App. 446, 449-50, 477 S.E.2d 225, 227 (1996) (quoting West v. Tilley, 120 N.C. App. 145, 151, 461 S.E.2d 1, 4 (1995) (quoting United Lab., Inc. v. Kuykendall, 102 N.C. App. 484, 494, 403 S.E.2d 104, 111 (1991), aff\u2019d, 335 N.C. 183, 437 S.E.2d 374 (1993) (citations omitted)).\nIn this case, the record reveals that detailed invoices for legal fees were submitted to the trial court along with an affidavit of William Clark, plaintiff\u2019s counsel, which sets forth the hourly rates for the legal services rendered, the fact that the hourly rates charged were commensurate with the type of work involved, and are within the range of such fees and charges customarily charged in the community. Plaintiff\u2019s attorney amended its motion to reduce its invoice for legal fees for unrelated matters. Defendant has not argued that the hourly fee or time expended was unreasonable, but that portions of the attorney and expert witness fees were not related to this case. Defendant made the same argument before the trial court. The trial court in its order stated \u201chaving considered the arguments of the attorneys as well as their written motions and responses hereby determines that an award of attorney and expert-witness fees is appropriate.\u201d Defendant has presented no evidence that the trial court ignored its motion, responses, or arguments. Absent such a showing by defendant, we cannot find an abuse of discretion. The order allowing attorney fees is affirmed.\nC. Expert Witness Fees\nAlso submitted were detailed invoices for expert witness fees along with an affidavit of J. David Young regarding those fees. The Sedimentation Act authorizes the award of costs, including expert witness fees. N.C. Gen. Stat. \u00a7 113A-66(c) (1999). The decision to award expert witness fees also rests within the court\u2019s discretion. Defendant argues that the trial court erred in awarding expert witness fees since their testimony was not pursuant to a subpoena. N.C. Gen. Stat. \u00a7 7A-314 (1999); Brandenburg Land Co. v. Champion Int\u2019l Corp., 107 N.C. App. 102, 418 S.E.2d 526 (1992).\nN.C. Gen. Stat. \u00a7 7A-314(a) and (d) provide:\n(a) A witness under subpoena, bound over, or recognized, other than a salaried State, county, or municipal law-enforcement officer, or an out-of-state witness in a criminal case, whether to testify before the court, Judicial Standards Commission, jury of view, magistrate, clerk, referee, commissioner, appraiser, or arbitrator shall be entitled to receive five dollars ($5.00) per day, or fraction'thereof, during his attendance, which, except as to witness before the Judicial Standards Commission, must be certified to the clerk of superior court.\n(d) An expert witness, other than a salaried State, county, or municipal law-enforcement officer, shall receive such compensation and allowances as the court, or the Judicial Standards Commission, in its discretion, may authorize.\nAs interpreted by our Supreme Court in State v. Johnson, 282 N.C. 1, 27, 191 S.E.2d 641, 659 (1972), \u201c[s]ections (a) and (d) must be considered together, section (d) modifies section (a) by permitting the court, in its discretion, to increase the compensation and allowances.\u201d \u201cThe modification... does not abrogate the requirement that all witnesses must be subpoenaed before they are entitled to compensation.\u201d Id. at 27-28, 191 S.E.2d at 659.\nThe subpoena requirement under G.S. \u00a7 7A-314 has been applied in conjunction with the award of costs pursuant to G.S. \u00a7 6-20; see Campbell v. Pitt Co. Mem. Hosp., 84 N.C. App. 314, 352 S.E.2d 902, aff\u2019d 321 N.C. 260, 362 S.E.2d 273 (1973), overruled on other grounds, Johnson v. Ruark Ob. & Gyn. Assoc., 327 N.C. 283, 395 S.E.2d 85 (1990); Brandenburg Land Co. v. Champion Int\u2019l Corp., 107 N.C. App. 102, 418 S.E.2d 526 (1992). There is no evidence in the record that plaintiff\u2019s expert witnesses appeared under subpoena. Without the witnesses being subpoenaed, the trial court had no authority to award expert witness fees. We hold that the order allowing fees for expert witnesses not subpoenaed must be reversed.\nAffirmed in part as to defendant\u2019s liability, and remanded for a new trial on damages only, and affirmed in part as to award of attorney fees and costs, and reversed in part as to the award of expert witness fees.\nAffirmed in part, reversed in part and remanded.\nJudges WYNN and HUNTER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Roberts & Stevens, P.A., by William Clarke, for plaintiff - appellee.", "Creighton W. Sossomon, and Ogletree, Deakins, Nash, Smoak & Stewart, RC., by Elizabeth B. Partlow and Keith E. Coltrain, for defendant-appellant." ], "corrections": "", "head_matter": "WHITESIDE ESTATES, INC., Plaintiff v. HIGHLANDS COVE, L.L.C., Defendant\nNo. COA00-1378, COA00-1005\n(Filed 16 October 2001)\n1. Nuisance\u2014 corporate \u2014 interference with use and enjoyment of land \u2014 sufficiency of evidence\nThe trial court did not err in an action to recover the repair and restoration costs for plaintiff\u2019s creek and lake property caused by the sedimentation emanating from defendant\u2019s property by denying defendant\u2019s motion for a directed verdict, its motion for judgment notwithstanding the verdict, or alternatively a new trial based on alleged insufficient evidence for a corporate nuisance claim, because: (1) the record supports the jury\u2019s finding that substantial evidence exists that defendant intentionally caused and allowed colloidal material to flow into plaintiff\u2019s creek and lake to such a degree as to substantially and unreasonably interfere with plaintiff\u2019s use and enjoyment of its land; and (2) the evidence was sufficient for the jury to conclude that the injury to plaintiff\u2019s property was substantial and significant to recover damages.\n2. Trespass\u2014 land disturbing activities \u2014 sufficiency of evidence\nThe trial court did not err in an action to recover the repair and restoration costs for plaintiff\u2019s creek and lake property caused by the sedimentation emanating from defendant\u2019s property by denying defendant\u2019s motion for a directed verdict, its motion for judgment notwithstanding the verdict, or alternatively a new trial based on alleged insufficient evidence for a trespass claim, because there is sufficient evidence for the jury to conclude that defendant\u2019s land disturbing activities caused sediment to unlawfully enter upon plaintiff\u2019s property causing damage and injury.\n3. Environmental Law\u2014 Sedimentation Pollution Control Act \u2014 sufficiency of evidence\nThe trial court did not err in an action to recover the repair and restoration costs for plaintiff\u2019s creek and lake property caused by the sedimentation emanating from defendant\u2019s property by denying defendant\u2019s motion for a directed verdict, its motion for judgment notwithstanding the verdict, or alternatively a new trial based on alleged insufficient evidence of defendant\u2019s violation of the Sedimentation Pollution Control Act under N.C.G.S. \u00a7 113A-66(a)(4), because even though no statutory notices of violation were issued and the inspector testified that defendant had done as good a job as it could do, substantial evidence proves that sediment left defendant\u2019s site and caused injury to plaintiff.\n4. Damages\u2014 reasonable cost to repair and restore property \u2014 prenuisance condition\nThe issue of damages for the repairing and restoration of plaintiff\u2019s creek and lake property caused by the sedimentation emanating from defendant\u2019s property is remanded to the trial court because: (1) plaintiff\u2019s evidence failed to establish, with as much certainty as the nature of the circumstances permit, the reasonable estimate of the cost to repair and restore plaintiff\u2019s lake and creek to its prenuisance condition; and (2) no evidence at trial established with reasonable certainty plaintiff\u2019s costs to control, on plaintiff\u2019s property, the source of sediment coming off defendant\u2019s property.\n5. Damages\u2014 requested jury instruction \u2014 condition of lake\nThe trial court did not err in an action to recover the repair and restoration costs for plaintiff\u2019s creek and lake property caused by the sedimentation emanating from defendant\u2019s property by refusing to give defendant\u2019s requested jury instruction concerning evidence from plaintiff corporation\u2019s shareholders regarding the condition of the lake as evidence of damage sustained by defendant, because the testimony about the condition of the lake goes directly to the question of injury sustained to the property.\n6. Damages\u2014 requested jury instructions \u2014 preventive measures \u2014 aesthetic injury \u2014 increased sedimentation\nThe trial court did not err in an action to recover the repair and restoration costs for plaintiff\u2019s creek and lake property caused by the sedimentation emanating from defendant\u2019s property by refusing to give defendant\u2019s requested jury instructions that preventive measures may not be considered as any measure of damage suffered by plaintiff, there has been no evidence of a valuation or amount of damage caused by the aesthetic injury, and the sediment being deposited on plaintiff\u2019s property is no more than the amount in the past, because: (1) the trial court instructed the jury that any evidence offered by plaintiff with respect to adequately detaining the source of sediment leaving defendant\u2019s property is not necessarily evidence of preventive measures; (2) there was sufficient evidence of defendant\u2019s injury to sustain an award for damages; and (3) the amount of sediment affecting plaintiff\u2019s property goes to the issue of reasonableness of the interference or invasion and the significance of the injury.\n7. Evidence-scientific\u2014 turbidity samples from lake and creek water\nThe trial court did not abuse its discretion in an action to recover the repair and restoration costs for plaintiff\u2019s creek and lake property caused by the sedimentation emanating from defendant\u2019s property by allowing the introduction of turbidity samples from the lake and creek water into evidence, because: (1) the trial court found plaintiff\u2019s expert testimony about turbidity sampling was reliable under N.C.G.S. \u00a7 8C-1, Rules 702 and 703, defendant offered no evidence of turbidity readings, and defendant failed to offer evidence that the measurements were inaccurate; and (2) five jars of water with different turbidity levels were introduced for illustrative purposes only to assist the jury in determining different levels of turbidity.\n8. Costs\u2014 attorney fees \u2014 apportionment\u2014same nucleus of operative facts\nThe trial court was not required to apportion attorney fees in plaintiff\u2019s actions under the Sedimentation Pollution Control Act, common law nuisance, and trespass even though attorney fees are generally not recoverable for plaintiff\u2019s common law nuisance and trespass claims, because: (1) the allowance of attorney fees under the Sedimentation Act is expressly in the discretion of the trial court under N.C.G.S. \u00a7 113A-66(c); and (2) all of plaintiff\u2019s claims arise from the same nucleus of operative facts and each claim was inextricably interwoven with the other claims.\n9. Costs\u2014 attorney fees \u2014 reasonableness\nThe trial court did not abuse its discretion by awarding attorney fees in plaintiff\u2019s actions under the Sedimentation Pollution Control Act, common law nuisance, and trespass, because: (1) the trial court made the appropriate findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney; (2) plaintiff\u2019s counsel amended its motion to reduce its invoice for legal fees for unrelated matters; and (3) defendant has not argued that the hourly fee or time expended was unreasonable.\n10. Costs\u2014 expert witness fees \u2014 Sedimentation Pollution Control Act \u2014 failure to subpoena witness\nThe trial court erred by awarding expert witness fees to plaintiff under N.C.G.S. \u00a7 7A-314 based on plaintiffs claim under the Sedimentation Pollution Control Act, because the statute provides the requirement that all witnesses must be subpoenaed before they are entitled to compensation, and there is no evidence in the record that plaintiff\u2019s expert witnesses appeared under subpoena.\nAppeal by defendant from judgment entered 6 March 2000 and order entered 30 May 2000 by Judge J. Marlene Hyatt in Jackson County Superior Court. Both appeals heard in the Court of Appeals 15 August 2001.\nRoberts & Stevens, P.A., by William Clarke, for plaintiff - appellee.\nCreighton W. Sossomon, and Ogletree, Deakins, Nash, Smoak & Stewart, RC., by Elizabeth B. Partlow and Keith E. Coltrain, for defendant-appellant." }, "file_name": "0449-01", "first_page_order": 481, "last_page_order": 502 }