Pake v. Morris
53 S.E.2d 300
N.C.
1949
Check Treatment
Stacy, C. J.

We are here confronted with (1) the sufficiency of the issues to determine the controversy, and (2) the correctness of the charge.

The issues were taken from the case of Mewborn v. Rudisill Mine, 211 N.C. 544, 191 S.E. 28, and they seem quite sufficient to settle the present *426 controversy. Roper v. Leary, 171 N.C. 35, 87 S.E. 945. The issues submitted were evolved from the pleadings, secundum, allegata, while those tendered by the plaintiffs relate only to evidentiary disputations. Kirk v. R. R., 97 N.C. 82, 2 S.E. 536. The verdict suffices to determine the controversy. McIntosh on Procedure, 545. Cf. McManus v. R. R., 150 N.C. 655, 64 S.E. 766.

A fish factory of the character disclosed by the record is not a nuisance per sej situation, environment, and manner of operation determine its status. Webb v. Chemical Co., 170 N.C. 662, 87 S.E. 633; Redd v. Cotton Mills, 136 N.C. 342, 48 S.E. 761. Speaking to a similar situation in the adjoining County of Craven, it was said: “This Court would be slow to declare a lawful business a nuisance per se.” Duffy v. Meadows, 131 N.C. 31, 42 S.E. 460.

The following is the heart of the instruction which forms the principal exception to the court’s charge to the jury: “The mere fact that there is a fish scrap plant there does not constitute a nuisance per se, within itself. It must affect the health, comfort or property of those who live near. It must work some substantial annoyance, some material physical discomfort to the plaintiffs, or injury to their health or property.”

The instruction was patterned after the opinion in Duffy v. Meadows, supra, and is fully supported by what was said therein.

Of course, the verdict here which negatives any past nuisance settles no more than the present controversy. It affords the defendant no license to operate its plant in the future so as to create a nuisance. The defendant is at all times subject to the law of the land. So conceded. Sic utere tuo, etc., is good law as well as good morals. Cherry v. Williams, 147 N.C. 452, 61 S.E. 267.

There is no error appearing on the record. The verdict and judgment will be upheld.

No error.

Seawell, J., dissents.