McLean v. Town of Mooresville , 237 N.C. 498 ( 1953 )

"WiNBORNE, J.

Tbe trial in tbe court below was upon tbe theory of tbe assessment of permanent damages. To bave sucb damages assessed was a right of plaintiffs. See Donnell v. Greensboro, 164 N.C. 330, 80 S.E. 377.

Also, defendant Town of Mooresville, being a municipality with tbe right to condemn an easement for drainage purposes, G.S. 160-204 and Gr.S. 160-205, bad the right to bave sucb damages determined and assessed. See Wagner v. Conover, 200 N.C. 82, 156 S.E. 167.

In Rhodes v. Durham, 165 N.C. 679, 81 S.E. 938, Hoke, J., writing for tbe Court, said: “Our decisions are also in support of tbe proposition that where tbe injuries are by reason of structures or conditions permanent in their nature, and their existence and maintenance is guaranteed or protected by the power of eminent domain or because tbe interest of tbe public therein is of sucb an exigent nature that right of abatement at tbe instance of an individual is of necessity denied, it is open to either plaintiff or defendant to demand that permanent damages be awarded; tbe proceedings in sucb cases to some extent taking on tbe nature of condemning an easement,” citing cases.

Tbe present case is in line with tbe principle so declared. Here tbe plaintiffs bave asked for permanent damages for tbe storm sewer line. Tbe jury has assessed, and tbe judgment has awarded to plaintiffs permanent damages therefor. Indeed, tbe judgment tendered by plaintiffs provides for tbe payment of sucb damages so awarded. Moreover, tbe defendant has prayed for, and tbe judgment has granted to it an easement for tbe storm sewer line, and adjudged that it shall pay to plaintiffs tbe amount of tbe award for permanent damages.

Applying decisions of this Court, upon payment of sucb damages tbe defendant Town of Mooresville will acquire permanent right to operate and maintain its storm sewer line across tbe lands of plaintiffs so long as it is kept in proper repair. Tbe principle is epitomized in explanatory comments of Devin and Denny, JJ., in denying petition to rehear Veazey v. City of Durham, 232 N.C. 744, 59 S.E. 2d 429.

Hence in tbe judgment from which appeal is taken, we find

No error.