TWITTY v. STATE

No. 869SC949.

354 S.E.2d 296 (1987)

Henry F. TWITTY and William Twitty v. STATE of North Carolina and Heman R. Clark, Secretary of the North Carolina Department of Crime Control and Public Safety.

Court of Appeals of North Carolina.

April 7, 1987.


Attorney(s) appearing for the Case

Banzet, Banzet & Thompson by Lewis A. Thompson, III, Warrenton, and Bobby W. Rogers, Henderson, for plaintiffs-appellees.

Atty. Gen. Thornburg by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.


EAGLES, Judge.

I

The State first assigns error to the trial court's conclusion of law that the State's operation of the PCBs disposal facility "constitutes a public nuisance permanent in nature that has resulted in a diminution in value of plaintiffs' lands for which plaintiffs are entitled to just compensation."

On appeal, the conclusions of law drawn by the trial judge are fully reviewable and may be reversed if erroneous. Hofler v. Hill and Hofler v. Hill, 311 N.C. 325, 317 S.E.2d 670 (1984); Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980). A conclusion of law must be based upon the facts found by the trial judge. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977).

"A public nuisance exists wherever acts or conditions are subversive of public order, decency, or morals, or constitute an obstruction of public rights. Such nuisances always arise out of unlawful acts." State v. Everhardt, 203 N.C. 610, 617, 166 S.E. 738, 741-42 (1932). A public nuisance affects the local community generally and its maintenance constitutes an offense against the State. Id.

To constitute a public nuisance, the condition of things must be such as injuriously affects the community at large, and not merely one or even a very few individuals.... Whatever tends to endanger life, or generate disease, and affect the health of the community; whatever shocks the public morals and sense of decency; whatever shocks the religious feelings of the community, or tends to its discomfort—is generally, at common law, a public nuisance, and a crime.

203 N.C. at 618, 166 S.E. at 742.

There are no findings of fact here that support a conclusion of law that the State's operation of the PCBs disposal facility constitutes a public nuisance permanent in nature. Indeed, there is no evidence upon which findings could have been made. This is not an action to abate a public nuisance. See generally 9 Strongs, N.C. Index 3d, Nuisance Section 10 (1977). Plaintiffs' cause of action is for inverse condemnation.

Plaintiffs argue that the type of nuisance to which they have been subjected is more properly classified as a private nuisance per accidens and the trial court's conclusion of a public nuisance rather than private nuisance is not prejudicial error. Plaintiffs rely on 5 Am.Jur.2d, Appeal and Error Section 785 (1962): "The decision of the trial court should be affirmed if it is correct, although the lower court relied upon a wrong ground or gave a wrong reason, or the judgment or order complained of contains inaccurate or erroneous declarations of law. The judgment or order need not be sustained for the same reason or for all the reasons relied upon by the trial court."

The trial court's judgment here cannot be sustained on the basis of private nuisance per accidens. An intentional private nuisance per accidens is one which constitutes a nuisance by reason of its location or the manner in which it is constructed, maintained or operated. Watts v. Manufacturing Company, 256 N.C. 611, 124 S.E.2d 809 (1962); Morgan v. Oil Co., 238 N.C. 185, 77 S.E.2d 682 (1953). "It is the unreasonable operation and maintenance that produces the nuisance." 256 N.C. at 617, 124 S.E.2d at 813 (emphasis in original). In addition, for liability to exist, there must be a "substantial non-trespassory invasion of another's interest in the private use and enjoyment of property." Id. (emphasis in original) Therefore, in order to make out a prima facie case plaintiff must show (1) that defendant's maintenance and operation of the enterprise is unreasonable and (2) that because of the unreasonable conduct there has been substantial injury and loss of value to plaintiff's property. Id. at 618, 124 S.E.2d at 814. The essential inquiry in any nuisance action is whether the defendant's conduct is unreasonable. Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977).

There is no finding or conclusion of law that the State's conduct in maintaining and operating the PCBs disposal facility was unreasonable. On the contrary, the trial court concluded that the State's conduct "in maintaining and operating the PCBs disposal facility upon the lands in question is not unreasonable and constitutes a proper exercise of the police authority of the State to promote the health, safety and welfare of the people of North Carolina." We have reviewed this conclusion of law in light of the evidence presented and the trial court's findings of fact and have determined that it is supported by both the evidence and the findings of fact.

There is no evidence to support plaintiffs' recovery on the basis of nuisance, public or private. The trial court's conclusion of law number six, that the State's operation of the PCBs disposal facility constitutes a public nuisance is unsupported by its findings of fact, is in direct conflict with its conclusions of law, is erroneous and must be set aside.

II

The State assigns error to the trial court's conclusion of law that there has been a "taking" of plaintiffs' lands, or an interest therein, for which plaintiffs are entitled to recover just compensation.

The trial court concluded that "plaintiffs have shown an actual interference with or disturbance of their property rights resulting in injuries which are not merely consequential or incidental in nature," and that the State's location and operation of the disposal facility have "resulted in a substantial non-trespassory invasion of plaintiffs' interest in the private use and enjoyment of their property in that it has resulted in a material diminution in value of plaintiffs' lands." Based on its findings and conclusions, the trial court ordered and decreed that:

The interest taken in plaintiffs' land is an easement for the accommodation of the continued operation of the PCBs disposal facility on the site in question. This interest is maximally defined as the right of the State to continue to operate the PCBs disposal facility so long as the physical integrity of the facility remains intact, and it is operated in such a manner as to prevent any physical invasion of plaintiffs' lands by the PCBs stored therein.

This portion of defendant's appeal addresses the validity of plaintiffs' claim for inverse condemnation. In essence, plaintiffs contend that the State's placement of the PCBs disposal facility in close proximity to plaintiffs' land constitutes a governmental taking for which they are entitled to just compensation under the Fourteenth Amendment to the United States Constitution and under Article 1, Section 19 of the Constitution of North Carolina. The State, on the other hand, contends that there has been no governmental taking of any kind. We believe that resolution of this issue depends upon our interpretation of Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982).

In Long the Supreme Court held that for a "taking" to occur "there need only be a substantial interference with elemental rights growing out of the ownership of the property." Id. at 199, 293 S.E.2d at 109; see Stillings v. Winston-Salem, 311 N.C. 689, 692, 319 S.E.2d 233, 235 (1984). Actual occupation of the land, dispossession of the landowner or even a physical touching of the land is not necessary under the modern construction of the "taking" requirement. 306 N.C. at 198-99, 293 S.E.2d at 109. Examples of "takings" cited by the court include odors from a nearby trash dump, Hines v. City of Rocky Mount, 162 N.C. 409, 78 S.E. 510 (1913); odors from an adjacent sewage disposal plant, Gray v. City of High Point, 203 N.C. 756, 166 S.E. 911 (1932); and odors, smoke, ashes, rats, mosquitoes and other insects from a sewage disposal plant, Ivester v. City of Winston-Salem, 215 N.C. 1, 1 S.E.2d 88 (1939). As explained by the Court "[t]hough no physical touching was present in those cases, the wafted smoke, odors, dust, or ashes over the plaintiff's land warranted compensation for a `taking.' " 306 N.C. at 199, 293 S.E.2d at 109.

"In order to recover for inverse condemnation, a plaintiff must show an actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental." Id. The Court in Long added that a "taking" has been defined as "entering upon private property for more than a momentary period, and under warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof." Id. (quoting Penn v. Coastal Corp., 231 N.C. 481, 57 S.E.2d 817 (1950)).

Long involved landowners alleging damage caused by low flying aircraft in taking off from and landing in the city owned and operated airport. As the Court pointed out, flights at altitudes that would in no way damage or interfere with the use and enjoyment of land have been held not to constitute a taking or damaging of the property: "[I]t has been recognized that there must be a substantial interference with the use and enjoyment of the land, not merely incidental damage, before a taking results." Id., 306 N.C. at 200, 293 S.E.2d at 110. "A compensable taking of a flight or avigation easement does not occur until overflights constitute a material interference with the use and enjoyment of property, such that there is substantial diminution in fair market value." Id. (quoting Cochran v. City of Charlotte, 53 N.C. App. 390, 397, 281 S.E.2d 179, 186 (1981) (emphasis original), cert. denied, 304 N.C. 725, 288 S.E.2d 380 (1982).

Not every act or happening injurious to a landowner, his property or his use of his property is compensable. 306 N.C. at 199, 293 S.E.2d at 109. The public importance and social utility of activity must be balanced against the inconvenience, annoyance and aggravation to those in its vicinity. Id. at 200, 293 S.E.2d at 110. "This balancing of interests necessarily and properly places a heavy burden on the landowner." Id. The balancing of interests is established by "the requirement that in order to recover for the interference with one's property, the owner must establish not merely an occasional trespass or nuisance, but an interference substantial enough to reduce the market value of his property." Id. With regard to the issue of compensability (entitlement to recover), "the fair and logical rule is that a landowner is entitled to compensation if the interference caused by the flights is sufficiently direct, sufficiently peculiar and of sufficient magnitude to support a conclusion that a taking has occurred." Id. at 201, 293 S.E.2d at 110. The test is whether the value of plaintiff's property has been substantially impaired by a "taking." Id. Property means not only the thing possessed but also "the right of the owner to the land; the right to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from its use." Id. (quoting Hildebrand v. Telegraph Co., 219 N.C. 402, 408, 14 S.E.2d 252, 256 (1941). "Thus, where a person's right to possess, use, enjoy or dispose of his land is substantially impaired, his property has been taken, and he is entitled to recover to the extent of the diminution in his property's value." Id., 306 N.C. at 201, 293 S.E.2d at 110-11. The measure of damages is the difference in the fair market value of the property immediately before and immediately after the taking. Id. at 201, 293 S.E.2d at 111.

Long requires "an actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental." Id. at 199, 293 S.E.2d at 109. While the term "actual interference" does not require actual physical invasion, actual dispossession or even a physical touching, the term does require that plaintiffs show interference with the use and enjoyment of their property substantial enough to reduce market value. Here the trial court concluded that the plaintiffs had shown actual interference with the private use and enjoyment of their property by showing that the State's location of the landfill "resulted in a material diminution in value of plaintiffs' lands." In essence, the trial court concluded that there was a "taking" because the market value of plaintiffs' lands had been diminished. However, we believe that the trial court skipped an important step and its conclusion is based on a misapprehension of the law.

A reduction in market value, standing alone, does not constitute an "actual interference with or disturbance of" plaintiffs' use and enjoyment of their property. Long requires an actual interference (the cause) substantial enough to reduce the market value of plaintiffs' property (the effect). Plaintiffs here have proved the effect—a material diminution in value—but not the cause. They have not demonstrated any actual interference with the use and enjoyment of their property caused by the State's operation of the PCBs disposal facility. Plaintiffs' complain about placement and assert that their damages stem from location of the PCB landfill. However, placement or location is not enough; if it were, then the plaintiffs in Long could have demonstrated a right to recover for inverse condemnation without ever having to show that aircraft overflights actually interfered with their use and enjoyment of their property, so long as they could prove reduced market value due solely to the location of and their proximity to the city owned and operated airport. Reading Long as a whole, we believe it requires that plaintiffs show more than a diminution in market value. Plaintiffs must show that the location and the operation of the PCBs disposal facility combined to constitute an "actual interference" with the use and enjoyment of their property.

The trial court concluded that the State's conduct in maintaining and operating the disposal facility upon the lands in question is not unreasonable and constitutes a proper exercise of the police authority of the State and that so long as the physical integrity of the State-owned facility remains intact, there is no realistic likelihood of environmental contamination to any lands either adjoining or in the vicinity of the facility as a result of the PCBs stored in the facility. Additionally, the trial court concluded that the evidence conclusively establishes that there have been no harmful or dangerous releases of PCBs buried in the disposal facility. No ground water, surface water or surface water sediments draining or being discharged into Richneck Creek or its tributaries from the PCBs disposal site, or the county-owned buffer zone which completely surrounds the disposal site, have been contaminated by any detectable or harmful or dangerous levels of PCBS buried in the site. There has been no actual physical invasion of plaintiffs' lands by the PCBs stored in the facility. These conclusions of law are supported by the trial court's findings of fact and the evidence in the record; as a result, they are conclusive and binding on appeal. Plaintiffs have failed to show any actual interference with the use and enjoyment of their property caused by the State's operation of the PCBs disposal facility which is "sufficiently direct, sufficiently peculiar and of sufficient magnitude to support a conclusion that a taking has occurred." 306 N.C. at 201, 293 S.E.2d at 110.

CONCLUSION

Plaintiffs are not entitled to recover on the ground of nuisance, public or private, and the trial court's conclusions that the State's operation of the PCBs disposal facility constitutes a public nuisance is erroneous and must be set aside. Further, plaintiffs have failed to demonstrate that they are entitled to recover based upon inverse condemnation. The trial court's conclusions that plaintiffs "have shown an actual interference with or disturbance of their property rights resulting in injuries which are not merely consequential or incidental in nature" and that "the State's location and operation of the PCBs disposal facility on the site in question have resulted in a substantial non-trespassory invasion of plaintiffs' interest in the private use and enjoyment of their property in that it has resulted in a material diminution in value of plaintiffs' lands" are not supported by the findings of fact or the evidence of record. Having resolved the first two issues in favor of the State, it is unnecessary to address the State's remaining arguments and assignments of error. The judgment of the trial court is

Reversed.

WELLS and GREENE, JJ., concur.


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