Andrews v. Andrews

88 S.E.2d 88 (1955)

242 N.C. 382

T. Curtis ANDREWS and Catherine Andrews v. T. B. ANDREWS.

No. 594.

Supreme Court of North Carolina.

June 30, 1955.

*91 M. C. McLeod, Rockingham, for plaintiffs, appellants.

Pittman & Webb, by W. G. Pittman, Rockingham, for defendant, appellee.

HIGGINS, Justice.

On account of the novelty of the question involved in this appeal, we have set out in full both the complaint and the demurrer. The assignment of error raises the question whether the complaint states a cause of action. If it does, the judgment must be reversed. If it fails, the judgment must be affirmed. The question of proof does not arise at this stage of the proceeding. We are concerned with allegation alone. Does the complaint allege enough facts to entitle the plaintiffs to go to the jury if they prove all they allege?

Some of the salient facts alleged are: The defendant in 1949 constructed upon his own land an artificial pond covering three and one-half acres within 400 feet of plaintiffs' lands which theretofore had never suffered depredations by wild geese. During the winter of 1951-1952 the defendant placed lame wild geese (those that cannot fly), on the pond, kept food and bait on and around *92 the pond for the purpose of attracting wild geese, and as a result of the decoys and food, wild geese in large numbers immediately came to the pond; and from it as a base, foraged out upon the adjacent lands of the plaintiffs, destroying their crops. The first year, because of the food and decoys maintained on and around the pond, approximately 200 wild geese spent the winter there. For the same reasons about 1,200 spent the succeeding winter; and the third winter approximately 3,000 stayed from October until Spring. These wild geese feeding out from the defendant's pond as a base, destroyed plaintiffs' crops of the value of $48 the first year, $105 the second year, and $1,343 the third year.

The plaintiffs allege also the defendant knew it is the nature of wild geese to do the things charged. He knew they migrate from the north in the Fall months to ponds where shelter, food, and other geese are located, or lame geese kept. Geese spend the winter on the pond and feed on the surrounding countryside, particularly on cultivated crops. In the Spring they migrate north, raise young geese, and return to the same pond with their young and with additional geese to spend the winter so long as shelter, decoys, and food are provided. As more and more wild geese are attracted, they feed upon and become more and more destructive to plaintiffs' crops, grown and growing upon their lands. Of all this the defendant had knowledge.

The defendant continues to maintain lame wild geese upon his pond and up until the time of bringing this suit is and has been placing food for them. The plaintiffs have repeatedly warned the defendant of the damage to their crops by the geese attracted to the pond, but the defendant only laughed at and ridiculed the plaintiffs' complaint and refused to abate the nuisance.

The defendant argues in his brief no cause of action arises because the geese are wild; that the defendant does not own them; that they are in a state of nature; that he is not responsible for what they do; that it was lawful for him to build a pond on his own land and that if he feeds geese because of his love for wild things he is within his rights; that the plaintiffs have no right to complain, at least to complain in the courts.

The argument appears deceptively logical until a few other pertinent facts are taken into account. The defendant knew, according to the allegations in the complaint, that wild geese are attracted to a pond where food is placed and where lame wild geese are maintained; that each year they return to the same pond in numbers increasing in geometric progression as long as shelter and food and decoys are provided. They feed out from the base which the defendant maintains and destroy crops, especially those close at hand. Plaintiffs' farm of 449.2 acres is within 400 feet of the base of operations provided and maintained for the geese by the defendant with knowledge of what they do. At the same rate of increase 7,500 will be there this year and 20,000 next. If there is no relief for the plaintiff as of the date suit was brought, there will be none next year. Surely the arm of the law is neither too short nor too weak to reach out to the pond and take away the wild geese maintained as prisoners there to attract their kind in ever increasing numbers.

While careful search fails to reveal a case based on similar facts, the application of well-established legal principles offers some help in pointing the way to a solution of the legal problem presented. The plaintiffs call to their aid an ancient maxim handed down to us from the time when Latin was the language of the court: Sic utere tuo ut alienum non laedas, (to use your own so that you do not injure another). The law makes it a private nuisance when one by an improper use of his property does injury to the land, property, or rights of another. Holton v. Northwestern Oil Co., 201 N.C. 744, 161 S.E. 391.

The plaintiffs' cause of action is grounded in that field of tort liability designated as private nuisance. Private nuisance may be per se or per accidens. A *93 private nuisance per se (by itself) or at law, is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. A private nuisance per accidens, or, in fact, becomes a nuisance by reason of its location or the manner in which it is constructed, or maintained, or operated. Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682.

The defendant, in the brief and on the oral argument, contends the complaint is insufficient by reason of the fact that negligence neither in the construction of the pond nor in the manner in which it is maintained and operated is alleged. The argument ignores the fact that negligence and nuisance are separate fields of tort liability. While the same act or ownership may constitute negligence and at the same time become a nuisance per accidens, and be practically inseparable, yet the latter may be created, or maintained, or operated without negligence. Swinson v. Cutter Realty Co., 200 N.C. 276, 156 S.E. 545.

"Most private nuisances per accidens or in fact are intentionally created or maintained, and are redressed by the courts without allegation or proof of negligence." Morgan v. High Penn Oil Co., supra [238 N.C. 185, 77 S.E.2d 688]. Godfrey v. Western Carolina Power Co., 190 N.C. 24, 128 S.E. 485. In the Morgan case, Justice Ervin discusses most thoroughly the whole concept of nuisance liability, citing the decisions of many courts.

We conclude the plaintiffs' complaint, when liberally construed, states a cause of action for nuisance per accidens, or in fact. Whether they can offer proof to support the allegations of the complaint will present a problem for another day and another tribunal.

The judgment of the Superior Court of Richmond County is

Reversed.

PARKER, Justice (dissenting).

This question is presented for decision: Can the defendant be held liable for the trespasses of wild geese, which are ferae naturae, which he did not own and which have not been reduced to possession, but exist in a state of nature? My brethren say Yes: I do not agree.

The general rule is, there is no individual property in wild animals, geese or fish so long as they remain wild, unconfined, and in a state of nature. 2 Am.Jur., Animals, p. 696.

The doctrine of liability attaching to one who owns or keeps insecurely confined on his premises wild animals causing injury has no application to the facts here. As to that see: Annotation 69 A.L.R. 500; 3 C.J.S., Animals, § 143.

Sickman v. U. S., 7 Cir., 184 F.2d 616, 618, certiorari denied 341 U.S. 939, 71 S. Ct. 999, 95 L. Ed. 1366, rehearing denied 342 U.S. 843, 72 S. Ct. 21, 96 L. Ed. 637, motion for leave to file a second petition for rehearing denied, 342 U.S. 874, 72 S. Ct. 104, 96 L. Ed. 657, is a case with strikingly similar facts, and was brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671-2680, to recover $26,500 alleged damages to crops of corn and soybeans claimed to have been destroyed in 1946 and 1947 by migratory waterfowl, principally Canada geese. The Court said: "* * * a private person could not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature. The United States, considered as a private person, did not have any ownership, control or possession of these wild geese which imposed liability for their trespasses."

I vote to affirm.