Pemberton v. City of Greensboro
181 S.E. 258
N.C.
1935
Check Treatment
Stacy, C. J.

Tbis is tbe same case tbat was before us, on procedural questions, on two former appeals, reported in 203 N. C., 514, 166 S. E., 396. and 205 N. C.. 599, 172 S. E.. 196.

*470 It is manifest from tbe court’s rulings and the jury’s verdict that plaintiffs have been awarded compensation for the loss of their dairy business. True, the judge told the jury the earnings and production of plaintiffs’ dairy were not admissible as tending to show the measure of damages, still such evidence was received in order to place before the jury “the entire situation, ... all the facts and circumstances having any tendency to show damages, or their probable amount,” and “to aid the jury in estimating the extent of the injury sustained.” This would seem to be at variance with the rule for the admeasurement of damages in compensation cases. Gray v. High Point, 203 N. C., 756, 166 S. E., 911; Cook v. Mebane, 191 N. C., 1, 131 S. E., 407; Moser v. Burlington, 162 N. C., 141, 78 S. E., 74; Metz v. Asheville, 150 N. C., 748, 64 S. E., 881; Williams v. Greenville, 130 N. C., 93, 40 S. E., 977.

There are instances, of course, e.g., breach of special contract, Oil Co. v. Burney, 174 N. C., 382, 93 S. E., 912, rental contract, Brewington v. Loughran, 183 N. C., 558, 112 S. E., 257, when the value of an established and going business may properly constitute an element of recoverable damages, but not so in cases of injury to “property” growing out of the exercise of the right of eminent domain. Sawyer v. Commonwealth, 182 Mass., 245, 65 N. E., 52, 59 L. R. A., 726.

Speaking to the subject in the cited case, Holmes, C. I., delivering the opinion of the Court, said: “It generally has been assumed, we think, that injury to a business is not an appropriation of property which must be paid for. There are many serious pecuniary injuries which may be inflicted without compensation. It would be impracticable to forbid all laws which might result in such damage, unless they provided a quid pro quo. No doubt a business may be property in a broad sense of the word, and property of great value. It may be assumed for the purposes of this case that there might be such a taking of it as required compensation. But a business is less tangible in nature and more uncertain in its vicissitudes than the rights which the Constitution undertakes absolutely to protect. It seems to us, in like manner, that the diminution of its value is a vaguer injury than the taking or appropriation with which the Constitution deals. A business might be destroyed by the construction of a more popular street into which travel was diverted, as well as by competition, but there would be as little claim in the one ease as in the other. See Smith v. Boston, 7 Cush., 254; Stanwood v. Malden, 157 Mass.; 17. It seems to us that the case stands no differently when the business is destroyed by taking the land on which it was carried on, except so far as it may have enhanced the value of the land. See New York, New Haven & Hartford Railroad v. Blacker, 178 Mass., 386.”

*471 And in State v. Lumber Co., 199 N. C., p. 202, 154 S. E., 72, it was said: “Neither is it controverted that, unless sanctioned by statute, loss of profits from a business conducted on tbe property or in connection therewith, is not to be included in the award for the taking,” citing Mitchell v. U. S., 267 U. S., 341, and Joslin Mfg. Co. v. Providence, 262 U. S., 668.

The case of Jones v. Call, 96 N. C., 337, 2 S. E., 647, is not directly in point, as it involves no taking of property by eminent domain, still it may be cited as illustrative of one of the reasons for the rule. There, the plaintiff’s business of manufacturing and selling certain patented machines was interfered with and stopped by the alleged wrong of the defendant. At the time of the interference, plaintiff’s profit derived from such manufacture and sale was $6,000 per annum. It was held that an assessment which awarded to plaintiff this profit from the time of the interference to the time of the making of the referee’s report was erroneous; its basis being, of necessity, partly speculative, and there being no certainty that the business would have continued to yield such profit. See, also, Coles v. Lumber Co., 150 N. C., 183, 63 S. E., 736.

Again, the defendant seasonably requested the court to instruct the jury that any loss occasioned by the order of quarantine, issued by the Health Department, should not be confused with that arising out of the alleged nuisance, for which the plaintiffs sue. This was declined. On the contrary, attention was directed to the evidence tending to show that plaintiffs’ “dairy business was stopped, virtually destroyed,” by the order of quarantine. It seems inescapable that the value of plaintiffs’ dairy business was made an element of recoverable damages in the case.

Health ordinances are governmental in character and function. They are grounded in the police power. A municipality, therefore, is not liable in damages to the citizen who sustains an injury, or suffers a loss, by reason of their valid enactment and enforcement. Mack v. Charlotte, 181 N. C., 383, 107 S. E., 244; McIlhenney v. Wilmington, 127 N. C., 146, 37 S. E., 187; Prichard, v. Morganton, 126 N. C., 908, 36 S. E., 353; Moffitt v. Asheville, 103 N. C., 237, 9 S. E., 695; Annotation, 12 A. L. R., 247.

Of course, if plaintiffs’ farm has been rendered unfit for dairying purposes, or any other to which it is adaptable, by the construction and maintenance of defendant’s sewage disposal plant, as plaintiffs allege, this diminished value of the land, presupposing liability, constitutes a proper item for inclusion in the award, but a business per se is not “property” within the meaning of the law requiring compensation for its taking under the power of eminent domain. S. v. Lumber Co., supra; Gray v. High Point, supra; Power Co. v. Hayes, 193 N. C., 104, 136 S. E., 353. *472 If this were not so, one engaged in a business rendered unlawful by some prohibitory act, e.g., prohibition law, health or sanitation ordinance, might, with propriety, ask to be compensated for the loss of his business by reason of the passage of such law or ordinance. It is not thought that this position would be regarded as tenable. Salus populi suprema lex. S. v. Hay, 126 N. C., 999, 35 S. E., 459. Privatum incommodum publico bono pensatur. Daniels v. Homer, 139 N. C., 219, 51 S. E., 992. A careful perusal of the record leaves us with the impression that the loss of plaintiffs’ dairy business was one of the principal matters considered by the jury.

There are other exceptions appearing on the record worthy of consideration, but as they may not arise on another hearing, present rulings thereon, which could only be anticipatory, and perhaps supererogatory, are pretermitted.

For the errors, as indicated, a new trial must be awarded. It is so ordered.

New trial.