
112 S.E.2d 40 (1960)
251 N.C. 521
Henry A. RHYNE
v.
TOWN OF MOUNT HOLLY, a Municipal Corporation.
No. 176.
Supreme Court of North Carolina.
January 14, 1960.
*42 Fairley & Hamrick and Jack T. Hamilton, Charlotte, for plaintiff, appellee.
Childers & Fowler, Mount Holly, for defendant, appellant.
BOBBITT, Justice.
Apparently, plaintiff abandoned his alleged second cause of action. In any event, plaintiff's evidence as to damages did not relate to defendant's alleged failure to remove "said unsightly pile" from plaintiff's lot.
There was no exception to the issues as submitted, nor does it appear that either party tendered any other issue(s).
It is well established that an appeal follows the theory of the trial. Pegg v. Gray, 240 N.C. 548, 555, 82 S.E.2d 757; Strong, North Carolina Index, Vol. 1, Appeal and Error § 1, and cases cited.
While other elements of damages are referred to in plaintiff's allegations, plaintiff's evidence as to the alleged impairment *43 of the reasonable market value of his property relates solely to defendant's destruction of the trees thereon; and the case was submitted to the jury on this theory.
With reference to the first issue, the court instructed the jury, in substance, as follows: That the ordinance gave defendant the right to go upon plaintiff's vacant lot and cut or shrub down within four inches of the ground all weeds, grass or other noxious growth, and if defendant did no more than this, the jury's answer to the first issue would be, "No"; that oak trees the size of a person's wrist, twelve to fifteen feet high, are not weeds, grass or other noxious growth, and if the jury found, by the greater weight of the evidence, that defendant, after going upon plaintiff's vacant lot, cut such oak trees, such conduct would constitute a trespass upon plaintiff's property and the jury's answer to the first issue would be, "Yes."
Defendant does not deny its entry and acts upon plaintiff's property, nor does it assert that those who performed the work acted otherwise than in accordance with its instructions. Rather, it asserts what was actually done was justified by its (pleaded) ordinance.
The charter of the Town of Mount Holly is not in the record. Absent a special charter provision, presumably defendant relies upon G.S. § 160-55, which authorizes a municipal corporation to enact ordinances "for abating or preventing nuisances of any kind, and for preserving the health of the citizens." The court, in accordance with defendant's contention, conducted the trial on the theory that the ordinance is valid; and we approve the instruction to the effect that oak trees of the size specified are not "weeds, grass or other noxious growth," within the meaning of the ordinance, and that the ordinance did not justify defendant's destruction thereof.
The verdict establishes that defendant, having lawfully entered, damaged plaintiff's property by acts in excess of the authority conferred by the provisions of the ordinance. In this connection, it is noted that defendant's evidence tended to show that the market value of plaintiff's lot was enhanced, not impaired, by its entry and acts thereon. If so, plaintiff was not entitled to recover more than nominal damages, e. g., a penny. The court so instructed the jury.
Even so, defendant contends it was engaged in the performance of a governmental function, namely, in the exercise of its police powers to protect the health of its citizens and under such circumstances is not liable for the tortious acts of its officials and agents, and that the court should have granted its motion for judgment of involuntary nonsuit on this ground.
It is first noted that the basis of plaintiff's recovery is the fact that defendant cut and destroyed the oak trees on its land. The court disregarded all other alleged elements of damage.
Defendant alleged that plaintiff's lot was in such condition as to constitute "a menace to the general health of the people of the Town of Mount Holly." While the greater part of defendant's evidence relates to the "unsightly" appearance of plaintiff's lot prior to defendant's entry and acts thereon, there is some evidence tending to support defendant's said allegation. Defendant contends it was engaged in the abatement of such nuisance and hence was performing a governmental function.
While not referred to in the pleadings, the judge's charge, or in the briefs, G.S. § 160-234 and G.S. § 160-200, subds. 6, 26, 28, confer upon municipal corporations the power to abate nuisances, "whether on public or private property," G.S. § 160-200, subd. 26, that are detrimental to public health. G.S. § 160-234 provides: "The governing body, or officer or officers (of a municipal corporation) who may be designated for this purpose by the governing body, shall have power summarily to remove, abate, or remedy, or cause to be removed, *44 abated, or remedied, everything in the city limits, or within a mile of such limits, which is dangerous or prejudicial to the public health; and the expense of such action shall be paid by the person in default, and, if not paid, shall be a lien upon the land or premises where the trouble arose, and shall be collected as unpaid taxes."
In Harrington v. Greenville, 159 N.C. 632, 75 S.E. 849, 850, Hoke, J. (later C. J.), states: "The general power to abate nuisances conferred on municipalities by section 2929 and other sections of the Revisal, and the power to regulate, inspect, and condemn buildings contained in sections 2981 et seq. are clearly governmental in character, and for negligent default on the part of the city and its officers and agents no action lies; none having been given by the law." Section 2929 of the Revisal is now codified as G.S. § 160-55.
We reach this crucial question: Where defendant, acting under its power to abate a nuisance constituting a menace to health, goes upon plaintiff's lot, without plaintiff's permission or consent, for the purpose of eradicating what defendant deems to be such nuisance, and in so doing destroys trees thereon that do not in fact constitute a nuisance, is plaintiff's right to recover compensation for the impairment in value of his property caused by the destruction of the trees defeated because defendant was then engaged in the performance of a governmental function?
The legal principle on which defendant relies was stated by Hoke, J. (later C. J.), as follows: "It is well recognized with us that, unless a right of action is given by statute, municipal corporations may not be held civilly liable to individuals for `neglect to perform or negligence in performing' duties which are governmental in their nature, and including generally all duties existent or imposed upon them by law solely for the public benefit." Harrington v. Greenville, supra.
Upon this legal principle, recovery has been denied in many cases, based upon a variety of complaints against municipal corporations e. g., temporary suspension (by ordinance) of an ordinance prohibiting firing of fireworks, Hill v. Board of Aldermen of City of Charlotte, 72 N.C. 55; failure to enforce an ordinance regulating maintenance of "hog-pens and privies," causing plaintiff's illness, Hull v. Roxboro, 142 N.C. 453, 55 S.E. 351, 12 L.R.A.,N.S., 638; failure to prohibit boys from playing baseball on public streets, Goodwin v. Reidsville, 160 N.C. 411, 76 S.E. 232, 42 L.R.A.,N.S., 862; failure to provide an attendant at jail to protect prisoners against fire, Nichols v. Fountain, 165 N.C. 166, 80 S.E. 1059, 52 L.R.A.,N.S., 942; Dixon v. Wake Forest, 224 N.C. 624, 31 S.E.2d 853; Gentry v. Hot Springs, 227 N.C. 665, 44 S.E.2d 85; negligence of jailers in locking vicious prisoner in cell with plaintiff without searching prisoner for matches, Parks v. Princeton, 217 N.C. 361, 8 S.E.2d 217; neglect of jailers to maintain a warm jail during cold night, Moffitt v. Asheville, 103 N.C. 237, 9 S.E. 695; negligent construction and operation of an incinerator, causing injury to city employee, Scales v. Winston-Salem, 189 N.C. 469, 127 S.E. 543; negligently permitting children to play near a burning trash pile, Snider v. High Point, 168 N.C. 608, 85 S.E. 15; failure to provide adequate water under sufficient pressure to extinguish fire, Howland v. City of Asheville, 174 N.C. 749, 94 S.E. 524, L.R.A. 1918B, 728; negligent operation of trash collection vehicle, James v. Charlotte, 183 N.C. 630, 112 S.E. 423; Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325; Stephenson v. Raleigh, 232 N.C. 42, 59 S.E.2d 195; negligent operation of truck used to repair traffic signals, Hodges v. Charlotte, 214 N.C. 737, 200 S.E. 889; negligent operation of truck used in maintenance of street lighting system, Beach v. Town of Tarboro, 225 N.C. 26, 33 S.E.2d 64; neglect to observe sanitary precautions in discharging sewage from free public sewerage system into stream running near decedent's house, *45 causing illness resulting in death, Metz v. Asheville, 150 N.C. 748, 64 S.E. 881, 22 L.R.A.,N.S., 940; negligently permitting culvert to become choked and out of repair, causing illness, Williams v. Greenville, 130 N.C. 93, 40 S.E. 977, 57 L.R.A. 207; dumping garbage in hole near plaintiff's house, causing illness, Hines v. City of Rocky Mount, 162 N.C. 409, 78 S.E. 510, L.R.A. 1915C, 751; alleged negligent failure to condemn and remove buildings which were "fire traps," Harrington v. Greenville, supra; negligent failure to furnish suitable fire-fighting equipment, resulting in personal injury to fireman, Peterson v. Wilmington, 130 N.C. 76, 40 S.E. 853, 56 L.R.A. 959; arrest made in brutal manner by policeman known by city officials to be cruel in making arrests, McIlhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L.R.A. 470; negligence in connection with installation, maintenance and timing of traffic signals, Hamilton v. Hamlet, 238 N.C. 741, 78 S.E.2d 770; and negligence in continuing franchise to public utility furnishing gas to residents of municipality, resulting in gas explosion causing decedent's death, Denning v. Goldsboro Gas Co., 246 N.C. 541, 98 S.E.2d 910.
No North Carolina decision, except Prichard v. Commissioners, 126 N.C. 908, 36 S.E. 353, discussed below, has come to our attention, in which recovery has been denied when the municipality, by affirmative action for the purpose of abating a nuisance thereon, has damaged private property.
In Scales v. Winston-Salem, supra, it was held that the municipality was not liable for the construction and method of operation of its incinerator. But this Court has held that a municipality must pay just compensation if the operation of its incinerator damages private property, the basis of liability being that there has been a partial taking of private property for a public use or purpose. Dayton v. City of Asheville, 185 N.C. 12, 115 S.E. 827, 30 A.L.R. 1186; Ivester v. Winston-Salem, 215 N.C. 1, 1 S.E.2d 88. The test of liability is whether, notwithstanding its acts are governmental in nature and for a lawful public purpose, the municipality's acts amount to a partial taking of private property. If so, just compensation must be paid. Where, as here, the acts complained of consist of the physical destruction of trees on plaintiff's property, there can be no doubt but that a partial taking of plaintiff's property then occurred.
It is fundamental law that when private property is taken for a public use or purpose, just compensation must be paid. Eller v. Board of Education, 242 N.C. 584, 89 S.E.2d 144, and cases cited. "A constitutional prohibition against taking or damaging private property for public use without just compensation is self-executing, and neither requires any law for its enforcement, nor is susceptible of impairment by legislation." Sale v. State Highway and Public Works Commission, 242 N.C. 612, 617, 89 S.E.2d 290, 295. "* * * the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor." Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595, 596; Eller v. Board of Education, supra; Sale v. State Highway and Public Works Commission, supra.
Upon this fundamental principle, where the negligence of a municipality in the operation of its sewer system caused damage to private property and injury to the health of the occupants, this Court held that the landowner was entitled to recover for the damage to his property but not for personal injuries resulting from the condition created by defendant's negligence. Williams v. Greenville, supra; Metz v. Asheville, supra. In the Williams case, Furches, C. J., states [130 N.C. 93, 40 S.E. 978]: "The reason for this distinction, that it is liable for damage * * *, seems to lie in the fact of ownershipvested rights, which no one has the right to invade, not even the government, unless it be for public purposes, and then only by paying the owner for it. This right to take property does not fall *46 under the doctrine of police power, and the doctrine of respondeat superior applies." Also, see Pemberton v. Greensboro, 208 N.C. 466, 181 S.E. 258.
While not cited by defendant, we have not overlooked Prichard v. Commissioners, supra, in which the plaintiffs alleged, as to the Town of Morganton, that, pursuant to an order of its Board of Commissioners, plaintiffs' residence was burned and destroyed on the unfounded pretense that there was smallpox in the family or that the family had been exposed to it. The Town of Morganton demurred on these grounds: 1. The complaint failed to allege that the tortious acts complained of were, and it appears on the face thereof that they were not, within the scope of the charter powers of said corporation. 2. If the acts complained of were done under the express direction of the town commissioners, the conduct of the commissioners would be ultra vires. This Court, two Justices dissenting, held the complaint demurrable as to the Town of Morganton for failure to state facts sufficient to constitute a cause of action against it.
In the present case the Town of Mount Holly neither alleges nor contends that its entry and acts on plaintiff's property were ultra vires. It asserts only two defenses: 1. It was fully authorized by its ordinance to do what was done. 2. In any event, it was performing a governmental function.
In Prichard v. Commissioners, supra, this Court did not consider the question as to whether plaintiff was entitled to recover just compensation on the ground that private property had been taken or damaged by the Town of Morganton for a public use or purpose. This is also true in Greenwood v. City of Lincoln, 156 Neb. 142, 55 N.W.2d 343, 34 A.L.R.2d 1203, cited by appellant, a case relating to the destruction of raspberry bushes on plaintiff's property.
We reach this conclusion: Where a municipal corporation, in the exercise of its governmental power to abate nuisances, enters upon and damages private property by the destruction of trees, buildings, etc., thereon, it is liable for the payment of just compensation unless its acts were in fact necessary to remove or abate a nuisance.
In McQuillin, Municipal Corporations, Vol. 6 (3rd Ed. 1949) § 24.87, the applicable rule is stated as follows: "An owner of property is not entitled to compensation for property rightfully destroyed or damaged by a city in abating a nuisance; the reason for this is that the destruction or damage is for public safety or health and is not a taking of private property for public use without compensation or due process in the constitutional sense. But a municipality is liable for impairing, removing or destroying property, ostensibly in the abatement of a nuisance, where the thing or condition in question is not a nuisance per se, under statute or in fact, or where the thing or condition has not been declared to be a nuisance. If a party cannot get a hearing or remedy in advance of the destruction or seizure of his property he has a right to it afterwards by an action for its value. Indeed, no one, not even the municipal corporation in which an alleged nuisance is located, is protected against suit for damages for voluntarily removing that which is not a nuisance. * * *
"* * * A difference in market value before and after wrongful abatement has been ruled a proper measure of damages. The burden of proving justification has been placed on the city or its contractor. But issues of fact, of course, are for the jury or a court sitting without a jury." Also, see 39 Am.Jur., Nuisances § 185; 63 C.J.S. Municipal Corporations § 771.
The foregoing statement from McQuillin is well supported by these decisions: North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195; Sings v. City of Joliet, 237 Ill. 300, 86 N.E. 663, 22 L.R.A.,N.S., 1128; City of Forney v. Mounger, Tex.Civ.App., 210 S.W. 240; City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816; Moll Co. v. Holstner, 252 Ky. *47 249, 67 S.W.2d 1; Oglesby v. Town of Winnfield, La.App., 27 So.2d 137; McMahon v. City of Telluride, 79 Colo. 281, 244 P. 1017, 46 A.L.R. 358; Echave v. City of Grand Junction, 118 Colo. 165, 193 P.2d 277; Albert v. City of Mountain Home, Idaho, 337 P.2d 377.
In McMahon v. City of Telluride, supra, it is stated [79 Colo. 281, 244 P. 1017]:
"Abatement of nuisances is a governmental function. 28 Cyc. 1291. No liability can arise against a municipality for the destruction of property which is a nuisance, but it must be a nuisance in fact. 28 Cyc. 1292.
"Where the property is not in fact a nuisance, if the city is not liable in tort, because of the rule above mentioned and relied on by the city in the instant case, the municipality is nevertheless liable upon the theory that it must grant compensation for private property that it takes for public use. If certain property is in fact a nuisance, its destruction as such may not give rise to any right to compensation; but if property is destroyed under a mistaken belief that it is a nuisance, when in fact it is not a nuisance, it is taken for a `public use' within the meaning of the constitutional provision, and the loss to the owner should be made good * * *."
While it may be that a complete clearance of plaintiff's lot by defendant could be made more conveniently and possibly at less expense by use of the bulldozer, there is ample evidence to support the view that the conditions on plaintiff's lot that might be considered detrimental to public health could have been corrected without destroying the trees thereon.
Our conclusion is that the court properly overruled defendant's motion for judgment of involuntary nonsuit.
Conceding that defendant, upon sufficient allegations, would have been entitled to have issues submitted as to whether plaintiff's lot was in fact in such condition as to constitute a menace to public health, and as to whether its acts were in fact necessary to remove and abate such nuisance, defendant did not present its defense on that theory. It cannot now complain because the court did not conduct the trial on issues neither tendered by defendant nor raised by its pleading.
Consideration of the evidence leaves the impression that the real fight at the trial was whether the market value of plaintiff's lot was impaired or enhanced by defendant's entry and acts thereon. The jury resolved this vital issue in favor of plaintiff.
Since defendant's contention that the court erred in overruling its motion for judgment of involuntary nonsuit involves a matter of major importance, we have deemed it appropriate to give full consideration to that question. However, we have not overlooked defendant's numerous assignments of error relating to the court's rulings on evidence and to certain portions of the court's instructions to the jury. Suffice to say, consideration thereof discloses no error deemed sufficiently prejudicial to justify a new trial.
No error.
HIGGINS, J., took no part in the consideration or decision of this case.
