Moody v. Lundy Packing Company

172 S.E.2d 905 (1970)

7 N.C. App. 463

D. R. MOODY, Chairman of Deacons of Sandy Branch Baptist Church, Lee Emerson, Haywood Fields, Leroy Fields, Curtis Moody, Curtis Moore, Thomas Moody and Eulon Kiser, Deacons of Sandy Branch Baptist Church on behalf of Sandy Branch Baptist Church and on behalf of themselves individually and other residents of Chatham County similarly situated v. The LUNDY PACKING COMPANY, a Corporation, and the Lundy Sales Corporation, a Corporation.

No. 7015SC113.

Court of Appeals of North Carolina.

April 1, 1970.

*908 Robert L. Gunn, Pittsboro, for plaintiff appellants.

Poyner, Geraghty, Hartsfield & Townsend, by N. A. Townsend, Jr., Raleigh, for defendant appellees.

MORRIS, Judge.

Although plaintiffs excepted to certain of the court's findings of fact and grouped these exceptions as assignments of error Nos. 1 and 2, they did not bring these assignments of error forward and argue them in their brief. They are, therefore, deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina. The only assignments of error brought forward and argued by plaintiffs are Nos. 3 and 4. No. 3 is directed to the court's conclusion that plaintiffs had failed to establish their entitlement to have the restraining order continued and No. 4 assigns as error the signing and entry of the order dissolving the temporary restraining order. We do not reach either of these assignments of error for discussion, because we are of the opinion that defendants's demurrer should be sustained.

Defendants purpose to engage in a lawful business enterprise. The operation of a hog buying station is not a nuisance per se. Without doubt, it could become a nuisance per accidens when improperly maintained or conducted. Hall v. Budde, 293 Ky. 436, 169 S.W.2d 33 (1943); Kays v. City of Versailles, 224 Mo.App. 178, 22 S.W.2d 182 (1929); Vana v. Grain Belt Supply Co., 143 Neb. 118, 8 N.W.2d 837, 10 N.W.2d 474 (1943); Francisco v. Furry, 82 Neb. 754, 118 N.W. 1102 (1908); Town of Mt. Pleasant v. Van Tassell, 7 Misc.2d 643, 166 N.Y.S.2d 458 (1957), affd. 6 A.D.2d 880, 177 N.Y.S.2d 1010 (1958); Royalty v. Strange, Tex.Civ.App., 204 S.W. 870 (1918); State ex rel. Tollefson v. Mitchell, 25 Wash. 2d 476, 171 P.2d 245 (1946); Clark v. Wambold, 165 Wis. 70, 160 N.W. 1039 (1917).

While a court of equity will enjoin a threatened or anticipated nuisance under proper circumstances, courts are reluctant to enjoin the operation of a legitimate business enterprise, and where the thing complained of is not a nuisance per se, but may or may not become a nuisance, depending upon circumstances not yet existing, and the injury apprehended is merely contingent or eventual, equity will not interfere. Hooks v. International Speedways, Inc., 263 N.C. 686, 140 S.E.2d 387 (1965). In that case the Court, speaking through Moore, J., said [quoting from Pennsylvania Co. For Insurance, Etc. v. Sun Co., 290 Pa. 404, 138 A. 909, 55 A.L.R. 873 (1927)]:

"Where it is sought to enjoin an anticipated nuisance, it must be shown (a) that the proposed construction or the use to be made of property will be a nuisance per se; (b) or that, while it may not amount to a nuisance per se, under the circumstances of the case a nuisance must necessarily result from the contemplated act or thing. * * * The injury must be actually threatened, not merely anticipated; it must be practically certain, not merely probable. It must further be shown that the threatened injury will be an irreparable one which cannot be compensated by damages in an action at law."

In Wilcher v. Sharpe, 236 N.C. 308, 72 S.E.2d 662 (1952), plaintiffs sought to enjoin the erection and operation near their residences of a hammer feed mill for processing corn and other grains. A temporary restraining order was issued and, upon a show cause hearing, continued to the hearing. Defendants appealed and, in the Supreme Court, demurred ore tenus. In sustaining the demurrer, the Court said:

"The general rule established in this jurisdiction is that when the owner of *909 property is about to engage in a business enterprise which may or may not become a nuisance according to the manner in which it may be conducted, courts usually will not interfere in advance to restrain such an undertaking, especially when the apprehended injury is `doubtful, or contingent or eventual.' This is true when the business may be of some benefit to the community and the injury threatened relates to the comfort and convenience of complainants rather than such as imports immediate and serious injury to health or property rights. * * * To justify interference with defendant's right of property it must be made to appear that the proposed mill either per se or necessarily in the manner of its operation will become a nuisance. (Citations omitted.)"

Plaintiffs here allege that they are informed and believe that defendants have other hog buying stations which give off offensive odors, that they are advised the proposed station will be similar to the others, that defendants will have 200 hogs daily and plaintiffs are informed and believe conditions created thereby will cause flies and other insects with the constant inherent danger of disease and germs. Even if it be conceded that the allegations are facts admitted by demurrer, the mere fact that defendants have other hog buying stations which give off offensive odors causing annoyance and discomfort to some people in the neighborhood, is insufficient upon which to base a cause of action that the proposed station will constitute a nuisance when constructed. The allegations of the complaint "relate only to anticipated injuries which at this time are merely conjectural and contingent." Wilcher v. Sharpe, supra. No facts are alleged in the complaint which show substantial grounds for anticipating the injuries alleged or that a nuisance will be created.

The demurrer is, therefore, sustained. Plaintiffs are given leave to amend their complaint, if so advised. If they fail to do so, the action stands dismissed.

We do not wish to be understood as holding that plaintiffs may not take further action in the event the hog buying station should be operated in such a manner as to become a nuisance. It is incumbent upon the owners to conduct the same in such a manner that it will not become a nuisance and an annoyance to these plaintiffs and others similarly situated. Failing in this, they may subject themselves to correction and restraint by the courts upon proper application.

The cause is remanded for proceedings not inconsistent with this opinion.

Remanded.

MALLARD, C. J., and VAUGHN, J., concur.