256 N.C. 611
N.C.
1962
Moore, J.

Dеfendant first assigns as error the denial of its motion for nonsuit. The gist of its argument on this assignment is that there is no evidence that defendant “operated in such a way to occasion more noise and vibration than necessarily results from operation of other plants of like nature and character.” It calls attention to the undisputed testimony of the male plaintiff and his father, on cross-examination, that they had worked at a knitting mill, the Beaunit Mill in Lowell, Gaston County, and that the machines used and the manner of operating were similar to those of defendant.

Defendant cites Mewborn v. Rudisill Mine, Inc., 211 N.C. 544, 191 S.E. 28, as authority for its position. In that case plaintiffs sued, on the thеory of private nuisance per accidens, to recover damages for injuries to persons and property resulting from noises,- vibrations and glaring lights occasioned by the operation of a gold mine. Plaintiffs also asked for injunction to abate the nuisance. While it does not appear in the opinion, the reсord on file in this Court shows that plaintiffs alleged, among other things, that defendant applied and exploded unnecessarily large loads of dynamite, used an unnecessarily large bell, and there were noises, vibrations and lights not necessary to the operation of the mine. The record also shows that defеndant averred that the ore was being extracted “under the most approved methods,” and offered evidence tending to show its operation met the safety requirements of the Department of Labor, was modern and in accordance with approved methods, was the same as in other comparable gold mines and in keeping with good mining practice. The jury found that the operation did not constitute a nuisance, and there was judgment for defendant. The trial judge charged the jury, in part, that “the operation of a mine must occasion more noise and vibration than necessarily results from the оperation of other plants of like kind and character, operated as a reasonably prudent man or miner would operate them under like circumstances, in order to constitute such operation a nuisance.” The judgment was affirmed on appeal. The foregoing portion of the charge was not specifically in question and was not discussed in the opinion. The question raised and discussed was whether the judge should have charged, and did sufficiently charge, that the location of the mine and its operation at night were matters to be considered by the jury on the nuisance issue; and it was held thаt the judge “did, in effect, so instruct the jury.” The charge covered many principles not stated in the above excerpt, and other tests were also imposed for the guidance of the jury. The opinion states generally that, considering the charge as a whole, there was no error in the instructions on the nuisаnce issue, but there is no indication that this Court intended to adopt the portion of the charge quoted above as a general criterion for determining whether or not the operation of a lawful enterprise is a nuisance per accidens. In the Mewborn case it is obvious that the action, in a substantial degree, involved an alleged nuisance based on negligent operation. The excerpt from the charge quoted above, and relied on by defendant, might, under apposite pleadings and in limited circumstances, be a determinative test where the alleged nuisance involves negligent oper ation. But the instant action is not based оn negligent operation of the mill. Plaintiffs allege intentional conduct amounting to a nuisance per accidens by reason of unreasonable operation. The language relied on by defendant is not a decisive test in the case at bar.

Negligence and nuisance are distinct fields of tort liability. The same act or omission ‍‌​‌‌‌​‌​‌‌​‌​‌‌​‌​​‌​​​​​​‌​‌​‌​‌​​​​‌​‌‌​​‌‌‌​‌‍may constitute negligence and also may give rise to a private nuisance per accidens, and thus the two torts may coexist and be practically inseparable. But a private nuisance per accidens may be created or maintained without negligence. Indeed, most private nuisances per accidens are created or maintained, and are redressed by the courts without allegаtion or proof of negligence. A person is subject to liability for an intentional non-trespassory invasion of an interest in the use and enjoyment of land when his conduct is unreasonable under the circumstances of the particular case; a person is subject to liability for an unintentional invasion when his conduct is negligent, rеckless or ultrahazardous. An invasion of another’s interest in the use and enjoyment of land is intentional in the law of private nuisance when the person, whose conduct is in question as a basis of liability, acts for the purpose of causing it, or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct. A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury. Morgan v. Oil Co., 238 N.C. 185, 77 S.E. 2d 682; Andrews v. Andrews, 242 N.C. 382, 88 S.E. 2d 88.

In negligence actions the common usage in a business, as to installations, equipment, and manner of operation, is a prоper matter for consideration in determining whether or not reasonable care has been exercised in a particular case, but it does not furnish a test which is conclusive or controlling, and negligence may exist notwithstanding the means and methods adopted are in accordance with those customary in the business. 65 C.J.S., Negligence, s. 16, p. 404; Grant v. Bottling Co., 176 N.C. 256, 97 S.E. 27. Negligence is not a factor in the instant case according to the pleadings and evidence; plaintiffs allege intentional conduct amounting to private nuisance per accidens. Whether the use of property to carry on a lawful business, creating noise and causing vibrations, amounts to a nuisance depends upon the facts and circumstances of each particular case. Clinic & Hospital v. McConnell, 236 S.W. 2d 384 (Mo. 1951). The question is whether or not the use is unreasonable. “Negligence, wrong business methods, ‍‌​‌‌‌​‌​‌‌​‌​‌‌​‌​​‌​​​​​​‌​‌​‌​‌​​​​‌​‌‌​​‌‌‌​‌‍improper appliances, and the like may bear upon, but do not control, the question оf reasonable use.” McCarty v. Natural Carbonic Gas Co., 81 N.E. 549 (N.Y. 1907).

“The law of private nuisance rests on the concept embodied in the ancient legal maxim Sic utere tuo ut alienum non laedas, meaning, in essence, that every person should so use his own property as not to injure that of another.” Morgan v. Oil Co., supra.

The operation of a lawful enterprise is not a private nuisance per se, i.e., as a matter of law. State v. Brown, 250 N.C. 54, 108 S.E. 2d 74; Causby v. Oil Co., 244 N.C. 235, 93 S.E. 2d 79; Raleigh v. Edwards, 235 N.C. 671, 71 S.E. 2d 396; Pake v. Morris, 230 N.C. 424, 53 S.E. 2d 300. And the fact that a lawful enterprise produces noise and causes vibrations does not render it a private nuisance per se. But noise and vibrations emanating from the operation of a lawful enterprise may constitute it a private nuisance per accidens, i.e., in fact. 39 Am. Jur., Nuisances, ss. 48 and 52, pp. 333 and 335; Freidman v. Keil, 166 A. 194 (N.J. 1933); Cunningham v. Wilmington Ice Mfg. Co., 121 A. 654 (Del. 1923); Meyer v. Kemper Ice Co., 158 S. 378 (La. 1935).

Intentional private nuisances per accidens are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained or operated. Morgan v. Oil Co., supra. It is the unreasonable operation and maintenance that produces the nuisance. King v. Ward, 207 N.C. 782, 178 S.E. 577. And for liability to exist there must be a substantial non-trespassory invasion of another’s interest ‍‌​‌‌‌​‌​‌‌​‌​‌‌​‌​​‌​​​​​​‌​‌​‌​‌​​​​‌​‌‌​​‌‌‌​‌‍in the private use and enjoyment of property. Morgan v. Oil Co., supra. “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.” Pake v. Morris, supra; Duffy v. Meadows, 131 N.C. 31, 42 S.E. 460.

“The precise limits of one’s right to do as he pleases with his own property are difficult to define. The use must be a reasonable one, and the right implies and is subject to a like right in every other person. One cannot use his property so as to cause a physical invasion of another person’s property, or unreasonably to deprive him of the lawful use and enjoyment of the same, or so as to create a nuisance to adjoining property owners . . . and any unreasonable . . . use which produces material injury or great annoyance to others, or unreasonably interferes with their lawful use and enj oyment of their property, is a nuisance which . . . will render him liable for the consequent damage.” 39 Am. Jur., Nuisances, s. 16, pp. 297, 298.

“The jarring of a person’s premises, or the causing of vibration therein, may be a nuisance under some circumstances. However, vibration from proper acts done in an appropriate locality is not necessarily a nuisance, entitling an adjoining property owner to relief, but, if the vibration is excessive and unreasonablе, producing actual physi cal discomfort and annoyance to persons of ordinary sensibilities, it may be a nuisance. Vibrations in order to give rise to damages must be such as interfere with a substantial right.” 66 C.J.S., Nuisances, s. 21, p. 772. The same general rule applies with respect to noise, ibid. s. 22, pp. 772-774.

In the case at bar it is not controverted that plaintiffs are the owners of the house and lot referred to in the complaint, nor that defendant's knitting mill is a lawful enterprise. In order for plaintiffs to make out a 'prima jade case, on the second or nuisance issue, they must present evidence tending to show: (1) that the operation of the mill by defеndant produced unreasonable noise and vibration under the circumstances existing, and (2) that because of such unreasonable noise and vibration there was substantial injury and loss of value to plaintiffs’ house and lot.

The mere fact that an invasion of another’s interest in the use and enjoyment of land is intentional does not mean that it is unreasonable. Fundamentally, the unreasonableness of intentional invasion is a problem of relative values to be determined by the jury in the light of the circumstances of the case. The question is not whether a reasonable person in plaintiffs’ or defendant’s position would regard the invasion as unreasonable, but whether reasonable pеrsons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. Regard must be had not only for the interests of the person harmed but also for the interests of the defendant, and for the interests of the community. Restatement of the Law of Torts, Vol. 4, s. 826, Comments a. and b., pp. 241, 242. What is reasonable in one locality and in one set of circumstances may be unreasonable in another. The circumstances which are to be considered by the jury in determining whether or not defendant’s conduct is unreasonable include: the surroundings and conditions under which defendant’s conduct is maintained, thе character of the neighborhood, the nature, utility and social value of defendant’s operation, the nature, utility and social value of plaintiffs’ use and enjoyment which have been invaded, the suitability of the locality for defendant’s operation, the suitability of the locality for the use plaintiffs make of their property, the extent, nature and frequency of the harm to plaintiffs’ interest, priority of occupation as between the parties, and other considerations arising upon the evidence. No single factor is decisive; all the circumstances in the particular case must be considered. McCarty v. Natural Carbonic Gas Co., supra; Clinic & Hospital v. McConnell, supra.

“. . . (A) ccording to the weight of authority, the fact that a person voluntarily comes to a nuisance by moving into the sphere of its in jurious effect, or by purchasing adjoining property or erecting a residence or building in the vicinity after the nuisance is created, does not prevent him from recovering damages for injuries sustained therefrom, . . . especially where, by reason of changes ‍‌​‌‌‌​‌​‌‌​‌​‌‌​‌​​‌​​​​​​‌​‌​‌​‌​​​​‌​‌‌​​‌‌‌​‌‍in the structure or business complained of, the annoyance has since been increased. . . . But while priority of occupation is not conclusive as to the existence of a nuisance, it is to be considered with all the evidence, and the inference drawn from all the facts proved, in determining whether the use of the property is unreasonable.” 39 Am. Jur., Nuisances, s. 197, pp. 472, 473.

Before plaintiffs may recover the injury to them must be substantial. By substantial invasion is meant an invasion that involves more than slight inconvenience or petty аnnoyance. The law does not concern itself with trifles. Practically all human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. Each individual in a community must put up with a certain amount of annoyance, inconvenience or interference, and must take a certain amount of risk in order that all may get on together. But if one makes an unreasonable use of his property and thereby causes another substantial harm in the use and enjoyment of his, the former is liаble for the injury inflicted. Restatement of the Law of Torts, Vol. 4, s. 822, Comments g. and j., pp. 229 and 231.

In the light of the foregoing pertinent legal principles, we are of the opinion that plaintiffs’ evidence is sufficient to withstand defendant’s motion for nonsuit. Since there must be a new trial we refrain from a further analysis and discussion of thе evidence.

The court’s general legal instructions on the second issue are taken almost verbatim from, and include all that portion of the charge set out in, the opinion in Mewborn v. Rudisill Mine, Inc., supra. In summary and as the final instruction on the second issue the judge stated: “. . . (I)f the jury shall find from the evidence and by its greater weight, the burden being upon the plaintiff, that the maintenance and operation of the defendant’s mill occasioned more noise and vibration than necessarily resulted from a reasonable operation of other plants of like kind and character, and that such noise and vibration were excessive or unreasonable in degrees, or of such character to produce physical discomfort and injury to the property of the plaintiff, which could have been avoided but for such excessive or unreasonable operation, as I have defined them, and as alleged in the Complaint, then, Gentlemen of the Jury, thе court instructs you that if you find all of this by the greater weight of the evidence, that that would amount to a nuisance, and it would be your duty to answer the second issue ‘Yes.’ If you fail to so find by the greater weight of the evidence, it will be equally your duty to answer the second issue ‘no.’ ” Thus, to be entitled to a favorable verdict, рlaintiffs were required to meet two tests: (1) To show that defendant’s operation occasioned more noise and vibration than necessarily resulted from a reasonable operation of other plants of like character, and (2) that the noise and vibration caused by defendant’s operаtion were unreasonable in degree. The first test has no relation to the allegations of the complaint or the evidence. That an unnecessary and irrelevant burden was placed on plaintiffs is a matter of which defendant may not complain. This is especially true since defendant has contended that the first test was applicable. But the prejudicial feature of the instruction, as to defendant, is the failure of the court, anywhere in the charge, to give the jury rules or directions for determining unreasonableness of operation, that is, what matters were to be considered in making the determinаtion in a case such as the one at bar. Since we have already discussed this phase of the law above, no further statement is necessary here.

In passing, we think the submission of the third issue was confusing. It is necessarily embraced in the second issue. If there is no damage to plaintiffs, there is no nuisance; and the damage must be substantial. However, there was no exception to the submission of the issue.

For the reason stated there must be a

New trial.

Shaep, J., took no part in the consideration ‍‌​‌‌‌​‌​‌‌​‌​‌‌​‌​​‌​​​​​​‌​‌​‌​‌​​​​‌​‌‌​​‌‌‌​‌‍or decision of this case.