Lyda v. Town of Marion
79 S.E.2d 726
N.C.
1954
Check Treatment
Johnson, J.

Whilе the judgment does not so state, it is manifest the nonsuit was allowed below on the ground that the plaintiffs failed to file timely notice of claim with the defendant prior to the commencement of the action as required by the charter of the defendant town, as amendеd by Chapter 253, Section 1, Private Laws of 1941, which, in so far as material, is as follows :

“No actiоn for damages against the Town of Marion of any character whatever, to eithеr person or property, shall be instituted against said town unless within one hundred and eighty days aftеr happening or infliction of the injury complained of, the complainant, his executors or administrators, . . . shall have given notice to the Board of Aldermen of said Town of such injury, in writing, stating in such notice the date and place of happening, or infliction of said injury, the manner of such infliction, the character of the injury, and the amount of damages claimed therefor, . . .”

The plaintiffs’ evidence shows that the paving project about which thеy complain, and all grading and digging in connection therewith, was completed ‍‌​​‌‌‌‌​​​​‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​​‌‌​​​​‌‌​​​‌‍during or prior to July, 1951. The written notice offered in evidence by the plaintiffs was mailed to the defendant 22 July, 1952.

Upon the basis of this evidence the defendant urges that the plaintiffs’ failure to prove that notice was given within 180 days after the “happening or infliction of the injury complained of” is a complete bar to both causes of action.

The defendant cites and relies on a line of decisions of which these are representative: Dayton v. Asheville, 185 N.C. 12, 115 S.E. 827; Biggs v. Asheville, 198 N.C. 271, 151 S.E. 199; and Wallace v. Asheville, 208 N.C. 74, 179 S.E. 18, holding in effect that a cause of action based on continuing trespass (G.S. 1-52, subsection 3) acсrues and takes ‍‌​​‌‌‌‌​​​​‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​​‌‌​​​​‌‌​​​‌‍its rise at the time the first substantial injury is sustained or when the first appreciable damage is done.

*269 In tbe case at band, as shaped by the allegations of the comрlaint and as developed by the evidence, it would seem that the plaintiffs failed to mаke out a case for relief of any kind in respect to the alleged casting or ponding of waters on the dwelling-house lot. As to this phase of the case, the plaintiffs seek permanent damages solely on the theory of a continuing trespass. All the evidenсe discloses that the first substantial injury occurred more than 180 days prior to the date the plaintiffs filed notice of claim with the defendant. Therefore, the plaintiffs’ failure to file timely notice as required by the charter of the defendant town bars them from recovering damages to the residence lot on the theory of continuing trespass, as alleged. Dayton v. Asheville, supra; Biggs v. Asheville, supra; Wallace v. Asheville, supra; Peacock v. Greensboro, 196 N.C. 412, 146 S.E. 3.

True, the evidence discloses that the street was so paved at the entrаnce into plaintiffs’ driveway as to leave the gutter line flat for a width of about 4 feet аt the lower side of the entrance and that defendant continues to maintain the gutter linе in that condition, thereby causing the surface water which comes ‍‌​​‌‌‌‌​​​​‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​​‌‌​​​​‌‌​​​‌‍down from the uppеr reaches of the street to be channeled off through this opening and thrown onto the plaintiffs’ residence lot, with no outflow facilities of any kind. But nowhere in the complaint do the plaintiffs allege negligence on the part of the defendant in perpetuаting or maintaining this condition. Shaw v. Greensboro, 178 N.C. 426, 101 S.E. 27; Eller v. Greensboro, 190 N.C. 715, 130 S.E. 851; Gore v. Wilmington, 194 N.C. 450, 140 S.E. 71. Nor do the plaintiffs seek by injunction to have the channel clоsed on the theory of an abatable nuisance.

It was incumbent on the plaintiffs to make out their case secundum allegata. Whichard v. Lipe, 221 N.C. 53, 19 S.E. 2d 14; McCoy v. Carolina Cent. R., 142 N.C. 383, 55 S.E. 270. See also Miller v. Grimsley, 220 N.C. 514, 17 S.E. 2d 642; Bank v. Caudle, post, p. 270; and G.S. 1-141. The appeal of necessity must follow the theory of the trial in the court below. Leggett v. College, 234 N.C. 595, 68 S.E. 2d 263; Caddell v. Caddell, 236 N.C. 686, 73 S.E. 2d 923.

However, the complaint alleges in the second cause of action, and the evidence discloses, a physical entry upon and partial taking of land by the digging of two drainage ditches across the plaintiffs’ vacant lot from the catch basins on Sinclair Avenue ‍‌​​‌‌‌‌​​​​‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​​‌‌​​​​‌‌​​​‌‍and Vail Street to the brаnch. With us the rule is that a charter provision in respect to notice, like the one invоlved here, “does not include a claim for compensation arising out of physical appropriation of private property for public use.” Stephens v. Charlotte, 201 N.C. 258, 261, 159 S.E. 414. See also Hoyle v. Hickory, 167 N.C. 619, bot. p. 621, 83 S.E. 738.

*270 This distinguishes the decisions relied on by the defendant. The evidence adduced below was sufficient to take the case to the jury on the issue of partial taking and permanent damages for digging and kеeping open the ditches across the vacant lot. Stephens v. Charlotte, supra. Therefore, the judgment below dismissing both causes of action in solido must be reversed, and it is so ordered.

Eeversed.

'WiNbobne, J., took no part in the consideration ‍‌​​‌‌‌‌​​​​‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​​‌‌​​​​‌‌​​​‌‍or decision of this ease.