{ "id": 8631604, "name": "H. T. AYDLETT v. CAROLINA BY-PRODUCTS COMPANY, INCORPORATED", "name_abbreviation": "Aydlett v. Carolina By-Products Co.", "decision_date": "1939-05-31", "docket_number": "", "first_page": "700", "last_page": "703", "citations": [ { "type": "official", "cite": "215 N.C. 700" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "77 S. E., 1102", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "162 N. C., 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270238 ], "opinion_index": 0, "case_paths": [ "/nc/162/0083-01" ] }, { "cite": "184 S. E., 535", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N. C., 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221534 ], "opinion_index": 0, "case_paths": [ "/nc/209/0615-01" ] }, { "cite": "156 S. E., 167", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N. C., 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616143 ], "opinion_index": 0, "case_paths": [ "/nc/200/0082-01" ] }, { "cite": "140 S. E., 440", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "194 N. C., 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614934 ], "opinion_index": 0, "case_paths": [ "/nc/194/0644-01" ] }, { "cite": "107 S. E., 445", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "181 N. C., 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656320 ], "opinion_index": 0, "case_paths": [ "/nc/181/0423-01" ] }, { "cite": "87 S. E., 633", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N. C., 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661462 ], "opinion_index": 0, "case_paths": [ "/nc/170/0662-01" ] } ], "analysis": { "cardinality": 508, "char_count": 9672, "ocr_confidence": 0.451, "pagerank": { "raw": 1.0830881564327145e-07, "percentile": 0.5629909311315061 }, "sha256": "781ad4f2bd3e2cc036e278e2d862d298491b33d77eb5c92a5c08eee0877e5141", "simhash": "1:fe619caafa7183d5", "word_count": 1573 }, "last_updated": "2023-07-14T22:25:15.554902+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "H. T. AYDLETT v. CAROLINA BY-PRODUCTS COMPANY, INCORPORATED." ], "opinions": [ { "text": "DeviN, J.\nTbis was an action to recover permanent damages for injuries to plaintiff\u2019s real property by reason of noxious odors and other substantial annoyances caused by tbe operation of defendant\u2019s factory engaged in tbe manufacture of animal by-products.\nPlaintiff alleged and offered evidence tending to sbow tbat be is tbe owner of certain real property, near tbe corporate limits of tbe city of Greensboro, on wbicb property there are three dwelling bouses; tbat defendant has constructed or recently greatly increased tbe size and production of its plant outside the city limits and in tbe neighborhood of plaintiff\u2019s property; that defendant\u2019s plant is used for tbe production of tallow, poultry food and other by-products derived from the dead bodies of animals and from tbe refuse animal matter obtained from slaughter bouses, stock pens, butcher shops, hotels, etc., and tbat tbe accumulation and utilization of these materials give rise to tbe offensive and sickening odors of putrefaction, and to noxious gases wbicb are discharged in great volume from defendant\u2019s plant and carried to plaintiff\u2019s premises, producing substantial annoyance to tbe occupants and causing material dimunition in tbe market value of plaintiff\u2019s real property, chiefly valuable for tbe purpose of residence.\nTbe defendant admitted the erection and maintenance of its permanent plant for tbe manufacture of all kinds of animal by-products, but denied tbat, as conducted, and in tbe location where it was situated, it constituted a nuisance, and alleged and offered evidence tending to show tbat tbe installation and use of proper machinery, appliances and methods of deodorization rendered impossible tbe annoyances complained of save on infrequent occasions, and tbat tbe value of plaintiff\u2019s property has not been thereby lessened.\nIssues were submitted to tbe jury for tbe determination of tbe questions whether plaintiff\u2019s land bad been substantially damaged from tbe operations of defendant\u2019s plant, and as to tbe amount of damages recoverable for wrongful usage of defendant\u2019s property. Tbe issues were answered in favor of plaintiff and bis damages assessed at $1,000. Judgment was rendered in accord with tbe verdict, and it was provided therein tbat upon satisfaction of tbe judgment a permanent easement was granted defendant to maintain over and upon tbe lands of plaintiff such odors as emanate from defendant\u2019s plant operations under present conditions. Defendant excepted and appealed.\nWhile a plaintiff, alleging a nuisance causing damage to bis property, as tbe result of tbe manufacturing operations of a private corporation, may not be permitted, at bis election, to maintain an action for permanent damages with resultant easement to tbe defendant, rather tban for damages for continuing or recurrent wrong (Webb v. Chemical Co., 170 N. C., 662, 87 S. E., 633; Morrow v. Mills, 181 N. C., 423, 107 S. E., 445), it seems now well settled that tbe submission of issues of. permanent damages, when this is done by consent of tbe parties, will be upheld. Langley v. Hosiery Mills, 194 N. C., 644, 140 S. E., 440; Wagner v. Conover, 200 N. C., 82, 156 S. E., 167; Teseneer v. Mills Co., 209 N. C., 615 (623), 184 S. E., 535. Where one erects substantial buildings of a permanent character on his own land and by his operations carried on therein creates a nuisance or trespass on the land of another, causing substantial injury to the value thereof, the parties may elect to determine, at once and for all time, the issue of the entire damage, treating the nuisance as a feature of permanency and as amounting to the taking of complainant\u2019s property.\nIn Brown v. Chemical Co., 162 N. C., 83, 77 S. E., 1102, it was said : \u201cWhere, 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\u2019s property and it becomes in effect proceedings to condemn on complainant\u2019s land an easement to operate the plant for all time in the specified way.\u201d\nIn the instant case plaintiff brought his action specifically and solely to recover permanent damages, and the case was tried below on that theory. The defendant tendered issues in conformity with that view, and both plaintiff and defendant agree that the provisions in the judgment for the recovery of permanent damages, with consequent acquisition by defendant of a permanent easement, is in that respect proper. While the issues submitted did not as distinctly present the question of permanent damages as those tendered by defendant, yet, taken in connection with the judge\u2019s charge (to which no exception was noted), it is apparent that the issues which were tried by the consent of the parties with the concurrence of the court were those of permanent damages. In the conduct of the trial in this respect there was no error.\nThe defendant, however, contends that its motion for judgment of nonsuit should have been allowed, or that a new trial should be granted for errors assigned in the trial.\nWas defendant entitled to the allowance of its motion for judgment of nonsuit? While plaintiff\u2019s evidence was contradicted and the defendant offered evidence to show proper handling of its raw material and the absence of offensive odors, or, if odors escaped occasionally, that they were due to causes beyond its control and of short duration, the probative value and the weight of the testimony were matters for the jury. Considering the plaintiff\u2019s evidence in the light most favorable for him, as we are required to do on a motion for nonsuit, we find no error in tbe ruling of the trial judge in denying the motion. There was competent evidence to support the allegations of the complaint.\nWas error committed in the exclusion or admission of testimony over defendant\u2019s objection? A careful examination of the defendant\u2019s assignments of error as to the rulings of the court below, in regard to the evidence offered, leads us to the conclusion that the defendant has no just ground of complaint. Defendant excepted to the refusal of the court to permit the witnesses Dr. Hudson and John Bonitz to answer questions whether defendant\u2019s plant was modern and well equipped, but it does not appear what answer the witnesses would have given, nor that either witness was qualified to testify on that point. For the same reason the exception to the refusal of the court to permit Dr. Hudson to answer the question whether the complaints he had received as to defendant\u2019s plant were due to inadequate water facilities, cannot be sustained.\nDefendant also excepted to the admission of testimony from several witnesses who did not live in the immediate locality of the plaintiff\u2019s property, or who lived in different directions from defendant\u2019s plant, as to the effect upon them of the offensive odors. This was competent to show that such substantial annoyances as were alleged by plaintiff, and about which he and other witnesses testified, were in fact produced by defendant\u2019s operations, and that they contaminated the air throughout the surrounding territory, in corroboration of plaintiff\u2019s testimony. Evidence of decomposing carcasses and animal matter exposed about and near the plant tended to show the origin of the odors complained of.\nFor the reasons stated, we conclude that in the trial there was\nNo error.", "type": "majority", "author": "DeviN, J." } ], "attorneys": [ "H. R. Stanley for plaintiff.", "Louis Denit and Stern & Stern for defendant." ], "corrections": "", "head_matter": "H. T. AYDLETT v. CAROLINA BY-PRODUCTS COMPANY, INCORPORATED.\n(Filed 31 May, 1939.)\n1. Nuisance \u00a7 5\u2014\nIn an action to recover damages resulting to plaintiff\u2019s land from the emanation of odors from a permanent, private manufacturing plant in the locality, the parties may agree to the assessment of permanent damages entitling defendant to an easement.\n2. Nuisance \u00a7 3 \u2014 Evidence held sufficient for jury on issue of nuisance resulting\u2019 from the emanation of odors from defendant\u2019s manufacturing plant.\nPlaintiff\u2019s evidence tending to show that his land, used for residential purposes, was damaged by the emanation of noxious odors from defendant\u2019s animal by-products manufacturing plant, is held sufficient to take the issue to the jury, notwithstanding defendant\u2019s evidence tending to show proper handling of its raw material and the absence of offensive odors, or that, if odors escaped occasionally, they were due to causes beyond defendant\u2019s control and were of short duration.\n3. Trial \u00a7 22b\u2014\nOn a motion for nonsuit, plaintiff\u2019s evidence will be considered in the light most favorable to him.\n4. Appeal and Error \u00a7 39d\u2014\nThe exclusion of evidence cannot be held prejudicial when the record fails to show what the testimony of the witnesses would have been.\no. Same: Evidence \u00a7 5i\u2014\nThe exclusion of expert opinion testimony cannot be held for error when appellant fails to show that the witnesses were qualified to testify upon the matter.\n6. Nuisance \u00a7 3\u2014\nIn an action to recover damages to land resulting from noxious odors emanating from defendant\u2019s manufacturing plant, testimony of witnesses living near the plant, but not in the immediate locality of plaintiff\u2019s property, is competent to show that the noxious odors wore in fact produced by defendant\u2019s operations and that they contaminated the air throughout the surrounding territory, in corroboration of plaintiff\u2019s testimony.\n7. Same\u2014\nIn an action to recover damages to laud resulting from noxious odors emanating from defendant\u2019s animal by-products plant, testimony of decomposing carcasses and animal matter exposed about or near the plant is competent as tending to show the origin of the odors complained of.\nAppeal by defendant from Sink, J., at January Term, 1939, of G-uil-EORD. No error.\nH. R. Stanley for plaintiff.\nLouis Denit and Stern & Stern for defendant." }, "file_name": "0700-01", "first_page_order": 766, "last_page_order": 769 }