239 N.C. 232
N.C.
1954
Barnhill, J.

This cause is again before us in large measure because counsel and the trial court misconstrued and misinterpreted our former opinion, McKinney v. High Point, 237 N.C. 66, 74 S.E. 2d 440. When that opinion is considered contextually and correctly analyzed and construed, it appears that we, in effect, held that the complaint alleged only one act on the part of defendant which, if established by evidence, will support a finding that defendant has made a partial appropriation of plaintiffs’ property for a public use without just compensation.

Plaintiffs offered some evidence tending to show that the aluminum-colored tank, by reflecting the rays of the sun, concentrates an excessive glare on their premises to such an extent as to materially “cheapen” its value. This evidence is supported by allegation. For this reason the motion to dismiss, in view of our former opinion, McKinney v. High Point, supra, is untenable.

There is respectable authority to the effect that anything less than an actual physical invasion and “taking” of property for a public use cannot constitute a taking within the meaning of the fundamental law which requires the payment of just compensation. However, we need not enter into a discussion of that question — raised in the briefs — -for our former opinion is the law of this ease in respect thereto. Instead, we come directly to the exceptive assignments of error. These will not be discussed seriatim. We will only discuss briefly some of the questions raised thereby.

Plaintiffs’ claim was filed in apt time. Their, cause of action arose, if at all, when the defendant painted the tank with aluminum paint, thereby allegedly concentrating reflected rays of the sun on their property. Theretofore they had suffered no injury for which compensation may be recovered. Lyda v. Town of Marion, post, p. 265, and cases cited. Indeed, there is serious doubt whether the charter provision relied on by the defendant is controlling here. It would seem to apply to tort claims only. But this we do not decide.

In paragraph 9 of the complaint plaintiffs allege the various acts and conduct of defendant which, in combination, they contend constitute a wrongful taking of their property. It is true this Court summarized these allegations (including those which do not state conditions as they now exist but express the fears of the plaintiffs as to what may occur in the future) and said: “These allegations allege a taking of plaintiffs’ property for which compensation must be paid for any loss the plaintiffs may have suffered under the fundamental law of the State and Nation.” However, we also said: “If a complaint is good in any respect or to any extent, it cannot be overthrown by a demurrer.”

If the opinion had stopped there, little could be said about the theory of the trial in the court below. But that is not all. Speaking through Parker, J., the Court then proceeded to “knock down the ten pins” one by one.

¥e there held that (1) under the law as it then existed the defendant was not bound by its own zoning ordinance, and therefore it had the right to construct its water tank in a Eesidence A Zone without incurring any liability for the consequential damages sustained by residents of the zone as a result of such nonconforming use; and (2) in building the tank the defendant was acting in its governmental capacity and exercising one of its discretionary governmental powers or functions.

We further held that the complaint fails to allege a nuisance or negligent operation, and that the allegation that the tank constitutes a constant hazard to plaintiffs’ property from airplanes, windstorms, and the like are contingent and speculative, for which no damages may be assessed.

Thus we left the allegation “that it is painted a bright silver color so that the reflection of the rays of the sun upon it causes a continuous and blinding glare” which materially depreciates the value of their property as the one allegation upon which plaintiffs must rest their claim.

The court admitted the zoning ordinances to be considered on the question of damages only. This must be held for error. In so far as the defendant’s action in erecting the water tank in a Residence A Zone is concerned, the cause must be heard as if there was no ordinance. Since defendant was not bound by the ordinance, it can have no possible bearing on the question of damages. It did what it had a right to do, and any damages caused to surrounding property by reason of the erection and maintenance by the municipality of the tank in a Residence A Zone are consequential in nature for which no recovery may be had. McKinney v. High Point, supra; Clinton v. Ross, 226 N.C. 682, 40 S.E. 2d 593 (Operation of tobacco sales warehouse); King v. Ward, 207 N.C. 782, 178 S.E. 577 (Operation of cotton gin across street from plaintiffs’ residence).

In the King case this Court approved the charge to the jury as follows :

“I charge you, gentlemen, that even if the building of the gin in that locality diminished the value of the plaintiff’s . . . property, you could not consider that, because the defendant had a right to build it there, and if . . . the erection of any business building affected the property, residential property, near that; that, even if that were so, you could not consider that as an element of damage, that is the damage a man has to take who owns a residence, and as the gin was a business house next to him, that is the risk he takes in living in town ... You must be very careful to eliminate . . . from any damage that you may give to the plaintiff any depreciation in the value of its property, brought about by the building of this gin on the street opposite him, because he had a right to build it there.”

Dayton v. Asheville, 185 N.C. 12, 115 S.E. 827, cited and relied on by both parties, correctly construed, is no authority for plaintiffs on the facts in this case except as to the alleged excessive glare caused by the reflection of the rays of the sun. The key or decisive sentence in that opinion is this: “The alleged injury consists in the doing of a lawful act, but in such a manner as to amount to a partial taking of the property in question for a public use.” Except as to the alleged excessive rays of the sun reflected by the tank there is no evidence, on this record, of a “manner of use” amounting to a taking.

In a number of instances the court, in its charge, gave the jury instructions as to the law in the form of contentions. As an example, it stated:

“The position taken by the plaintiffs in that respect is that they had a property right, a vested property right in the retention of that area or that district in which they had built their home; that they had a property right in its remaining a residential area, and that property right was a vested right and that it was violated, impaired or destroyed by the erection of the water tank, and that they are entitled to compensation.
“They also allege and contend that they have been — that the use and enjoyment of that property has been impaired by the erection of that tank which constitutes a taking or an injury or a damaging of their property for which they contend they are entitled to be compensated.”

These instructions, though in the form of contentions, must be held for reversible error. S. v. Hedgepeth, 230 N.C. 33, 51 S.E. 2d 914; S. v. Pillow, 234 N.C. 146, 66 S.E. 2d 657; McLean v. McLean, 237 N.C. 122, 74 S.E. 2d 320.

The vice of the quoted excerpt from the charge is twofold: (1) It placed before the jury matters that had been expressly rejected by this Court in its former opinion and which should not be taken into consideration by the jury in arriving at a verdict, S. v. Pillow, supra, and cases cited; and (2) it presented an erroneous concept of the law. The adoption of a zoning ordinance does not confer upon citizens living in a Residence A Zone, as therein defined, any vested right to have the ordinance remain forever in force, inviolate and unchanged.

A zoning ordinance is not a contract between the municipality and its citizens. Realty Co. v. Cincinnati, 21 N.E. 2d 993. The adoption of such ordinance is a valid exercise of the police power, Raleigh v. Fisher, 232 N.C. 629, 61 S.E. 2d 897; Elizabeth City v. Aydlett, 201 N.C. 602, 161 S.E. 78, which is not exhausted by its use.

It being a law enacted in the exercise of the police power granted the municipality, no one can acquire a vested right therein. Turner v. New Bern, 187 N.C. 541, 122 S.E. 469; Pinkham, v. Mercer, 227 N.C. 72, 40 S.E. 2d 690; Reichelderfer v. Quinn, 287 U.S. 315, 77 L. Ed. 331; Reinman v. Little Rock, 237 U.S. 171, 59 L. Ed. 900. It is subject to amendment or repeal at the will of the governing agency which created it.

We might well overlook as harmless the erroneous statement of the law in the form of a contention if and when the judge forthwith instructs the jury as to the erroneous nature of the contention and gives them the correct rule to be followed by them in arriving at their verdict. But here this was not done either at the time the contention was stated or later in the charge.

There was error in the charge of the court on the issue of damages. The general import of the charge as to the law applicable to the facts in this case may be summarized by quotation of one excerpt of the charge on that issue as follows:

“The only question with which you will be concerned in your consideration of this issue is whether the City in erecting the tank took away from the plaintiffs something of value, be it large or small.”

Dy tbis instruction- tbe court opened tbe door for tbe jury to consider tbe alleged deprivation of a vested right, tbe proximity to tbe premises of plaintiffs, tbe fact tbe tank is taller than other buildings in tbe vicinity and can be seen from plaintiffs’ front yard and is a commercial structure erected in a residential section, as well as every other element of consequential damages plaintiffs insist they are entitled to recover. And tbe vice in tbe generality of tbe instruction is emphasized by tbe fact tbe court at no time instructed tbe jury as to what constitutes a taking or in what respect plaintiffs’ evidence tends to prove a taking under tbe law as it exists in tbis jurisdiction.

Defendant at tbis time seeks only one new trial, and one prejudicial error is sufficient basis for awarding it. However, we have departed from our usual' custom and discussed several errors in tbe trial, any one of which is sufficient to warrant a new trial. We have done so because these questions would, if not noticed by us, in all probability arise on a retrial and, we trust, our discussion will tend to promote a retrial of tbe issues in tbis cause free of substantial error.

We are indebted to counsel for full and comprehensive briefs in which many authorities bearing on the questions presented are cited. They have been of material aid to us. However, in view of our conclusions herein, we have refrained from citing many of tbe cases to which our attention has been directed.

For tbe reasons stated there must be a

New trial.