Clark v. Asheville Contracting Co., Inc.

323 S.E.2d 765 (1984)

Herbert L. CLARK and wife, Bobbie C. Clark v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Walter RULE and wife, Nancy Rule v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation William E. PFEIFFER and wife, Leigh Pfeiffer v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Herbert F. MOORE and wife, Loretta Moore v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Angelo G. DOTSIKAS and wife, Catherine M. Dotsikas v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Allen Walton YOUNG and wife, Birgit Young v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Winston C. LITTLE and wife, Linda B. Little v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Edsel RITTER and wife, Norma Ritter v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Harry GOLDEN and wife, Ruth Golden v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Tania ROLLMAN v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Arthur E. JACOBSON, Senior Warden, St. Luke's Episcopal Church, Dan Wall, Junior Warden, St. Luke's Episcopal Church v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Charles CROCKER and wife, Mae Crocker v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Eugene C. SANFORD and wife, Patricia G. Sanford v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation J. Robert HUFSTADER and wife, Jean Hufstader v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation William L. SUTTON and wife, Betty A. Sutton v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation Kenneth W. BROWNELL, Jr. and wife, Margaret Slack Brownell v. ASHEVILLE CONTRACTING COMPANY, INC., a North Carolina Corporation, Baxter H. Taylor and the State of North Carolina Department of Transportation

No. 8328SC900.

Court of Appeals of North Carolina.

December 28, 1984.

*768 Atty. Gen. Edmisten by Asst. Atty. Gen. Alfred N. Salley, Raleigh, for the North Carolina Dept. of Transp.

Long, Parker, Payne & Matney by Robert B. Long, Jr. and David E. Matney, III, Asheville, for plaintiff-appellees.

Adams, Hendon, Carson & Crow, P.A. by George Ward Hendon, Asheville, for defendant-appellants Asheville Contracting Co., Inc. and Baxter H. Taylor.

WEBB, Judge.

We note first that when the court entered a mandatory injunction requiring the defendants to remove the waste, this concluded the lawsuit. Although the judgment did not award the plaintiffs any damages in accordance with some of their claims, it was a final judgment for which there is the right to an immediate appeal regardless of whether the superior court made a determination that there is no just reason for delay.

We hold it was error not to dismiss all claims against Asheville Contracting Company, Inc. except the claims in three of the complaints that agents of Asheville Contracting entered their property and cut trees and dumped rock without permission of the owners. The complaints allege Asheville Contracting did certain work pursuant to a contract with the North Carolina Department of Transportation in the construction of a public highway. There is no allegation or proof other than the cutting of trees and dumping of rock on the property of some of the plaintiffs that Asheville Contracting performed its work negligently or not in accord with the contract. When a contractor with the Department of Transportation for work incidental to the construction *769 of a public highway performs such work with the proper care and skill, he cannot be held liable to an owner for damages resulting to property from the performance of the work. Highway Commission v. Reynolds Co., 272 N.C. 618, 159 S.E.2d 198 (1968); Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182 (1952). The plaintiffs contend this principle does not apply in this case because Asheville Contracting violated a zoning ordinance and restrictive covenants by placing the rock waste as it did. If this is so, the plaintiffs are trying to protect private rights given them by the ordinance and covenants. Whatever claim they may have is against the Department of Transportation for the diminution of their property values.

We believe the three claims that Asheville Contracting cut trees and deposited rocks on the property of the plaintiffs states a claim under which the plaintiffs may prove the company acted outside the contract or was negligent. For that reason, we hold it was not error to deny the motion to dismiss them.

We hold it was not error to deny the motion to dismiss by Baxter H. Taylor. He is not a party to the contract between Asheville Contracting and the Department of Transportation. The plaintiffs have alleged and offered a forecast of evidence which shows he violated restrictive covenants in his deed and a zoning ordinance. If they can prove this, they are entitled to relief.

We hold it was error to allow the motions for summary judgment. The complaints allege claims for inverse condemnation by the Department of Transportation. Whether the Department of Transportation has by violation of a zoning law, restrictive covenants, or otherwise created a public nuisance which diminishes the value of the plaintiffs' property presents questions of fact about which there is dispute. We believe the evidence as to these facts are in conflict so that the allowance of the motion for summary judgment as to them was error.

Although we reverse and remand as to the Department of Transportation and Baxter H. Taylor on the issue of the propriety of allowing the motion for summary judgment, we will comment on the mandatory injunction by which the defendants were ordered to remove the materials. There was evidence that it would take nine years and cost $13,500,000.00 to remove this material. The court made no findings of fact on this evidence. In determining whether to grant an injunction, the court must consider the relative convenience-inconvenience and the comparative injuries to the parties. See 42 Am.Jur.2d Injunctions § 56 (19). In this case some findings of fact should be made in this regard before ordering the removal of the material.

Reversed and remanded.

HILL and WHICHARD, JJ., concur.