#### BESSIE K. BROWN et al. v. VIRGINIA-CAROLINA CHEMICAL COMPANY.

(Filed 23 April, 1913.)

1. Nuisance — Fertilizer Plant — Increased Value of Property — Diminution of Value — Measure of Damages — Commencement of Nuisance — Instructions.

Where the plaintiff is suing for permanent damages to his .land caused by the erection of an addition by defendant to its fertilizer plant, about a year before the commencement of the action, including the manufacture of sulphuric acid, which is alleged to have caused the injury complained of, and it appearing that as formerly constructed it had existed for four or five years before the enlargements, without damage done or threatened to the plaintiff’s property, the latter is entitled to have his damages assessed as of the later date when the injury commenced ; and a charge of the court which instructed the jury that no recovery could be had by reason of the increased value of the plaintiff’s property by the location of defendant’s plant, and at the same time charge for diminution in value by the presence of gases and odors, is erroneous; for the plaintiff is entitled to damages caused by the enlargement of the plant, upon the value of his property as increased theretofore by reason of the location of that part of the plant which caused no injury.

2. Nuisance — Permanent Damages — Easement — Measure of Damages.

Where permanent damages to'contiguous lands are sought by the owner for the operation of a fertilizer plant of such charac*84ter as to be a nuisance, tbe suit amounts to tbe partial taking of another’s property, and it becomes, in effect, proceedings to condemn tbe complainant’s land, an easement to operate tbe pldnt for all time in a specified way; and tbe measure of damages is tbe difference in value of the property with and without tbe existence of tbe wrong, diminished by the incidental benefits especial and peculiar to tbe property by reason of tbe plant, but not by any benefits which are common to property of like kind similarly situated in that immediate neighborhood.

Appeal by plaintiff from Whedbee, J., at July Special Term, 1912, of DURHAM.

Civil action to recover damages by reason of an alleged nuisance in tbe construction and operation of tbe defendant’s plant.

There was evidence on part of plaintiff tending to sbow “that she was tbe owner in fee of 2% acres of land with a cottage bouse upon it, situated in Durham Township in tbe county of Durham, near tbe property and plant of tbe defendant; that tbe said property was on tbe macadam road leading east from East Durham in tbe city of Durham, and tbe defendant’s plant and property was on tbe opposite side of said road; that tbe plaintiff’s property was in a northerly direction from tbe defendant’s plant; that prior to and at tbe time defendant’s plant was originally constructed her residence was near said plant, and that tbe plaintiff’s bouse was built prior to said time, and that it was rented, but not occupied by tbe plaintiff as a residence ; that her said lot was capable of being divided into building lots, and was also capable of being used for agricultural purposes; that part of defendant’s plant was erected five or six years before this action was tried; that little more than a year before tbe time tbe defendant built its acid plant, and began tbe operation of tbe same in June, 1911; that there was no complaint and no suit against tbe defendant prior to tbe time of tbe erection of tbe acid plant or chambers; that since tbe erection of tbe said acid chambers, in which sulphuric acid is made, tbe gases and fumes escaping from tbe plant permeated tbe surrounding atmosphere, causing people to cough and sneeze, irritating eyes, throat, and nose, disagreeable in odor *85and pungent to the smell; that the effect of the escaping gases was to kill vegetation, trees, corn, millet, snaps, tomatoes, flowers, grapevines, pine trees, willow oaks and other trees, and the dust from the phosphate rock covered the floors of the porches, was carried into the houses, settled on food and drinking-water, and that thq people living near it had to keep their windows and doors closed facing in the direction of defendant’s plant; that the defendant’s plant was operated day and night.' and every day in the week, and these odors were discovered 300 and 400 yards from the defendant’s plant; that in the fall of 1911 the plaintiff was contemplating building other residences upon her property, but did not do so on account of the acid plant of the defendant”; and further testimony as to the amount of the pecuniary injury. There was evidence of defendant in denial of plaintiff’s right to recover, that the injury done to plaintiff’s property was not near so extensive as claimed, and that, on the whole, the value of such property was greatly enhanced by the construction and operation of defendant’s works. The parties having elected to treat the case as an action for permanent damages, issues were submitted as follows:

1. Are the plaintiffs the owners of the property described in the complaint?

2. Has the plaintiffs’ property been injured by the wrongful act of the defendants, as alleged in the complaint?

3. What permanent damages, if any, have the plaintiffs sustained ?

In his charge on the third issue, the court, among other things, instructed the jury as follows: “In considering the question of damages, you cannot take into consideration any increase in the value of the property by reason of the establishment of this plant and making a market and demand for labor, and therefore an increased demand for buildings or an increase in the value of property. In other words, the plaintiff will not be permitted in this case to have value of her property increased by reason of the location of the defendant’s plant and the increased demand for houses and labor, and at the same time charge for diminution in value by reason of the presence of gases and odors.”

*86There was verdict for plaintiff, assessing permanent damages at $300. Plaintiffs excepted to the charge on that issue, and appealed.

Ma/nmng, Kitchin & Everett and J. W. Barbee for plaintiff.

Bryant & Brogden and Fuller & Beade for defendant.

Hoke, J.,

after stating the case: Plaintiff excepted to the charge of the court on the issue as to damages, the objection being that it fixes an improper valuation of plaintiff’s property as a basis for estimating the damages suffered. We are of opinion that the position is well taken. On the facts in evidence, it appears that the plant of defendant company was erected and carried on for five or six years without damage done or threatened to plaintiff’s property, and that the injury arose by reason of an enlargement of the operations, including the construction and maintenance of certain chambers or tanks for the manufacture of sulphuric acid about one year before action commenced. This is the time the wrong was committed, and plaintiff is clearly entitled to h^ive the value of his property considered as of that date, whether its value was owing to the existence of the plant or otherwise. It was not open to defendant to invoke and use the benefits arising by reason of a former and rightful operation of its plant as a protection for the subsequent wrong. Kimel v. Kimel, 49 N. C., 121; Giles v. Stevens, 79 Mass., 146; Talbot v. Whipple, 73 Mass., 122. The portion of his Honor’s charge above excepted to in effect withdrew from the jury, as a basis of estimate, any and all enhancement of value on plaintiff’s property by reason of the existence of defendant’s plant either before or after the injury, and is prejudicial error, entitling plantiff to a new trial of the issue. Taking, then, the value indicated as a proper basis and in reference to the enlargement of the plant, including the addition of the acid tanks, etc., from which the injury resulted, when an action is brought for recurring damages, by reason of a nuisance in the operation of a manufacturing plant, causing injury to an adjoining or neighboring proprietor, the general rule is that incidental benefits or enhancement of value by reason of such plant or its enlargement, etc., may not be consid*87ered in diminution of damages. Francis v. Schoellkoff, 53 N. Y., 152; Duck Town Sulphur Co. v. Baries, 60 S. W., 593 (Term Chancery) ; 2 Wood on Nuisances (3d Ed.), sec. 877. But where, as in this case, the parties elect to'treat the action as one for permanent damages, the suit then amounts to the partial taking of another’s property, and it becomes in effect proceedings to condemn on the complainant’s land an easement to operate the plant for all time in the specified way, and the damages are awarded very much on the principles which obtain in proceedings of that character, the true measure being the difference in value of the property with and without the existence of the wrong, diminished by the incidental benefits especial and peculiar to the property by reason of the plant as enlarged and conducted, but not by any benefits which are common to property of like kind and similarly situated in that immediate neighborhood. R. R. v. Platt Land, 133 N. C., 266; R. R. v. Esterlee, 76 Ky., pp. 667-677; Sutherland on Damages, sec. 1056; 21 A. and E. (2d Ed.), Title, Nuisances, p. 730. The general position is very well stated in the last citation, as follows : “The general rule is that the incidental benefits accruing to plaintiff cannot be set off against the damages resulting from the nuisance, as the plaintiff cannot be required to accept indemnity in any manner other than that provided by law; but, when a nuisance operates as a partial taking of the plaintiff’s property, any resulting benefit peculiar to him may be considered in mitigation of damages.”

For the error indicated, plaintiff is entitled to a new trial on the issue as to damages, and it is so ordered.

New trial.