
71 S.E.2d 396 (1952)
235 N.C. 671
CITY OF RALEIGH
v.
EDWARDS et al.
No. 456.
Supreme Court of North Carolina.
June 11, 1952.
*398 Paul F. Smith, Raleigh, Henry H. Sink, Cary, and Grover H. Jones, High Point, for plaintiff, appellant.
Ruark & Ruark and Joseph C. Moore, Jr., Raleigh, for interveners, appellees.
JOHNSON, Justice.
This appeal from the ruling of the court below on the petitioner's demurrer tests the sufficiency of the interveners' answer to allege facts sufficient to constitute these alternate affirmative defenses: (1) that the erection by the City of Raleigh of the proposed elevated water storage tank on lands adjoining their home site would constitute a nuisance, impairing the value of their property and amounting in law to a partial taking of their home, as prohibited by G.S. § 40-10; (2) that the erection of the proposed water tank in violation of the covenants *399 restricting the use of all the property in the subdivision to "private dwelling purposes only" would deprive the interveners of vested property rights of substantial value created by these restrictive covenants, entitling them to compensation for such deprivation, in the event their cause of action in nuisance should fail and the City should prevail in its attempt to erect the proposed water tank.
1. The Nuisance Defense.Notwithstanding governmental immunity from liability for negligent tort (Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42; Stephenson v. City of Raleigh, 232 N.C. 42, 59 S.E.2d 195), our decisions holdand they are in accord with the weight of authority elsewherethat the creation and maintenance of a governmental project so as to constitute a nuisance substantially impairing the value of private property, is, in a constitutional sense, a taking within the principle of eminent domain. Hines v. City of Rocky Mount, 162 N.C. 409, 78 S.E. 510, L.R.A.1915C, 751; Dayton v. City of Asheville, 185 N.C. 12, 115 S.E. 827, 30 A.L.R. 1186; See also Hiatt v. City of Greensboro, 201 N.C. 515, 160 S.E. 748; Jones v. City of High Point, 202 N.C. 721, 164 S.E. 119; Gray v. City of High Point, 203 N.C. 756, 166 S.E. 911; Hudson v. Town of Morganton, 205 N.C. 353, 171 S.E. 329; Annotation, 2 A.L.R.2d, 677.
In Dayton v. City of Asheville, supra, 185 N.C. 12, 115 S.E. 828, in holding that the City of Asheville in impairing the value of neighboring property by the erection and operation of an incinerator might be liable for the damage thereby caused (as a taking within the principle of eminent domain), notwithstanding the incinerator was operated in the exercise of a governmental duty in disposing of the city garbage, Stacy, J., speaking for the Court, said: "* * * the city having a right to erect the incinerator and to maintain it for the benefit of the public, in the exercise of a governmental duty, it will not be held civilly liable to individuals for injuries resulting therefrom, when properly built and operated, upon the theory of a trespass, in the absence of some legislative authority or a statute conferring such right of action. * * * But the denial of a right to recover against a municipality for an alleged injury upon the theory of its constituting a trespass does not militate against the right of recovery for a taking or appropriating, in whole or in part, of property for a public use without due compensation. * * * `Public necessity may justify the taking, but cannot justify the taking without compensation.'"
In the instant case the interveners allege in substance that the erection of the proposed water tank on the Edwards property "almost overhanging their home" will overflow and spray or pour water on their dwelling house, and that the water pressure in the house will be so increased, by reason of the close proximity of the tank, as to create a grave danger of "bursting the water pipes" in their home, thus amounting to a nuisance greatly diminishing the value of their home and rendering its ordinary use "uncomfortable and unpleasant to them and amounting in law to a taking of their dwelling house," as prohibited by the provisions of G.S. § 40-10.
G.S. § 40-10 provides as follows: "No such corporation shall be allowed to have condemned to its use, without the consent of the owner, his dwelling house, yard, kitchen, garden or burial ground, unless condemnation of such property is expressly authorized in its charter or by some provision of this code."
G.S. § 160-204 provides as follows: "When in the opinion of the governing body of any city, or other board, commission, or department of the government of such city having and exercising or desiring to have and exercise the management and control of the streets, water, electric light, power, gas, sewerage or drainage systems, or other public utilities, parks, playgrounds, cemeteries, wharves, or markets, open-air or enclosed, which are or may by law be owned and operated or hereafter acquired by such city or by a separate association, corporation, or other organization on behalf and for the benefit of such city, any land, right of way, water right, privilege, or easement, either within or outside the city, shall be necessary for the purpose of opening, establishing, building, widening, extending, enlarging, maintaining, *400 or operating any such streets, parks, playgrounds, cemetery, water, electric light, power, gas, sewerage or drainage systems, wharves, or other public utility so owned, operated, and maintained by or on behalf of any such city, such governing body, board, commission, or department of government of such city may purchase such land, right of way, water right, privilege, or easement from the owner or owners thereof and pay such compensation therefor as may be agreed upon."
G.S. § 160-205 provides as follows: "If such governing body, board, commission or department of the government of such city are unable to agree with the owners thereof for the purchase of such land, right of way, privilege, or easement, for the purposes mentioned in the preceding section, or for a site for city hall purposes, condemnation of the same for such public use may be made in the same manner and under the same procedure as is provided in chapter Eminent Domain, article 2; and the determination of the governing body, board, commission, or department of government of such city of the land necessary for such purposes shall be conclusive."
G.S. § 40-10 was originally Chapter 61, Section 21, Session Laws of 1852. At the time of the enactment of this statute, municipalities were not included among corporations authorized to condemn land under the provisions of what is now Chapter 40, Article 1, of the General Statutes, to which the limitations set out in G.S. § 40-10 specifically refer; whereas the original provisions of G.S. §§ 160-204 and 160-205 were enacted in 1917. These statutes, as subsequently amended, are not limited by the provisions of G.S. § 40-10. Town of Mt. Olive v. Cowan, 235 N.C. 259, at page 263, 69 S.E.2d 525.
Therefore, it would seem that there is no merit in the interveners' contention to the effect that the City of Raleigh is without power to condemn the Edwards property and erect thereon the proposed water tank, on the theory that it will amount to a taking, in part at least, of the interveners' dwelling property.
It follows from what we have said that by virtue of G.S. §§ 160-204 and 160-205 the governing body of a municipality, for the purpose of erecting an elevated water storage tank as an addition to its water system, has the power, in the exercise of a sound discretion, to acquire by condemnation, if need be, dwelling house properties "either within or outside the city," and this is so irrespective of the provisions of G.S. § 40-10 and the related statute, G.S. § 40-2, subd. 2.
The decision in Selma v. Nobles, 183 N. C. 322, 111 S.E. 543, cited and relied on by the interveners, is distinguishable. There the Town of Selma was proceeding under its charter as amended by Chapter 116, Private Laws of 1915, which conferred upon the Town the right to condemn land for cemetery purposes, in the same manner "as lands are condemned by railroads and public utility companies * * *."
The petitioner's contention that this defense may not be joined in this proceeding is without merit. See G.S. § 40-16 and also 39 Am.Jur., Parties, § 79, pp. 951 and 952.
However, an elevated water tank is not a nuisance per se. Therefore, unless and until the tank is erected, the interveners in no event may be entitled to damages as for nuisance. This being so, the nuisance defense is premature. No subsisting affirmative defense is alleged presently entitling the interveners to damages. Consequently, as to this defense the demurrer should have been sustained, and it is so ordered. Green v. Good Roads Commission, 184 N.C. 636, 114 S.E. 819. See also Pake v. Morris, 230 N.C. 424, 53 S.E.2d 300; Mitchell v. Barfield, 232 N.C. 325, 59 S.E. 2d 810. If and when the interveners' right of action thereon accrues, it may be reasserted by petition in the cause.
2. The question whether the restrictive covenants contained in the deeds to the lots in the subdivision vested in the interveners a property right in the land sought to be condemned which must be paid for. This precise question does not seem to have been presented heretofore to this Court for determination, and the decisions from other *401 jurisdictions reflect a contrariety of opinion.
However, the decided weight of authority in other jurisdictions supports the proposition that such a restriction, being in the nature of an equitable servitude, is an interest in land and must be paid for when taken. The theory is that these restrictions impose negative easements on the land restricted in favor of and appendant to the rest of the land in the restricted area, and when a particular parcel thereof is appropiated for a public use that will violate the restrictions, such appropriation amounts in a constitutional sense to a taking or damaging of property of the other landowners for whose benefit the restrictions are imposed. 18 Am.Jur., Eminent Domain, § 157, p. 788; Annotations: 17 A.L.R. 554; 67 A.L.R. 385; 122 A.L.R. 1464.
It is true that such other landowners may not enforce the restrictions against the condemnor, but they are nonetheless entitled to an award of compensation "where, through the exercise of the power of eminent domain, there is a taking or damaging of such property rights * * *." 18 Am. Jur., Eminent Domain, § 157, p. 788. See Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024, 17 A.L.R. 543; Flynn v. New York, etc., R. Co., 218 N.Y. 140, 112 N.E. 913; Allen v. City of Detroit, 167 Mich. 464, 133 N.W. 317, 36 L.R.A.,N.S., 890; Town of Stamford v. Vuono, 108 Conn. 359, 143 A. 245; Britton v. School Dist., 328 Mo. 1185, 44 S.W.2d 33; State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741; Johnstone v. Detroit, G. H. & M. R. Co., 245 Mich. 65, 222 N.W. 325, 67 A.L.R. 373; Allen v. Wayne Circuit Judge, 159 Mich. 612, 124 N.W. 581; Ladd v. City of Boston, 151 Mass. 585, 24 N.E. 858 (opinion by Holmes, J.).
In Peters v. Buckner, supra, it was held by the Missouri Court that under the provisions of the State and Federal Constitutions prohibiting the taking of private property for public use without just compensation, where lots in a tract of land were platted and sold by a land company subject to the restriction that the lots should be used only for residential purposes, the rights conferred on the lot owners by such restriction were property rights not to be taken or damaged without just compensation being paid therefor; and that, on condemnation by the city of certain of the lots for the purpose of erecting a school house thereon, the other lot owners were entitled to compensation for the loss of the easement created by such restriction.
In Flynn v. New York, etc., R. Co., supra, it was held by the New York Court that where a railroad company bought lots in a tract of land which was subject to restrictions, including a prohibition against the erection of any structure for business purposes, and built and maintained thereon an electric railroad, there was a deprivation of property rights entitling the other lot owners in the tract to compensation.
In Allen v. Detroit, supra [167 Mich. 464, 133 N.W. 320], the Michigan Court held that the erection by a city of a fire engine house on property purchased by it, but restricted to residential purposes, was a taking of private property for public use and the owners of the lots for the benefit of which the restriction was imposed were entitled to compensation. The Court said: "Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and a property right of value, which cannot be taken for the public use without due process of law and compensation therefor; * * *"
The decisions representing the minority view rest for the most part on the theory that since all property is held subject to the power of eminent domain, the rights of the Sovereign or condemnor are impliedly excepted from the operation of these restrictive covenants; and that if not so excepted, the condemnor, not being party or privy to the contract creating the covenants, no action for damages will lie against the condemnor. See 18 Am.Jur., Eminent Domain, § 157, p. 788, footnote 20. Thus, in the final analysis the minority view is grounded on the theory that these restrictions, being contractual rights enforceable in equity only between parties in privy, do not constitute an interest in property at all. See Nichols on Eminent Domain, 3d. Edition, Vol. 2, § 5.73, pp. 82 and 83.
*402 On the other hand, the majority view rests squarely upon the theory that a negative easement created by a building restriction is a vested interest in land (18 Am. Jur., Eminent Domain, § 157, p. 788), and this Court has adhered unvaryingly to the principle that a negative easement of this kind is a vested interest in land. McKinney v. Deneen, 231 N.C. 540, 58 S.E.2d 107; Hildebrand v. Southern Bell Telephone & Telegraph Co., 219 N.C. 402, 14 S.E.2d 252; City of Charlotte v. Heath, 226 N.C. 750, 40 S.E.2d 600 (here it was conceded by all parties concerned that the negative easements involved were property rights to be condemned and paid for); Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697; East Side Builders v. Brown, 234 N.C. 517, 67 S.E.2d 489. See also Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781; Hiatt v. Greensboro, supra; Mordecai's Law Lectures, 2d. Edition, p. 557; Thompson on Real Property, Permanent Edition, Vol. 7, § 3620 through § 3631; Clark, Covenants and Interests Running with Land, p. 174 et seq.
In Davis v. Robinson, supra, 189 N.C. at page 598, 600, 127 S.E. at page 702, opinion by Varser, J., it is said: "Easements are classified as affirmative or negative. `Negative easements are those where the owner of a servient estate is prohibited from doing something otherwise lawful upon his estate, because it will affect the dominant estate.' * * * `"An easement always implies an interest in the land. * * * It is real property, and it is created by grant." ' * * A building restriction is a negative easement." (Italics added).
In Turner v. Glenn, supra, 220 N.C. at page 625, 18 S.E.2d at page 201, with Barnhill, J., speaking for the Court, it is said: "The servitude imposed by restrictive covenants is a species of incorporeal right. It restrains the owner of the servient estate from making certain use of his property. It is an interest in land, conveyance of which is within the statute of frauds." (Italics added).
Thus, holding as we do that these negative easements are vested property rights, it follows by force of natural logic and simple justice that for the taking of such property just compensation must be paid as in the case of the taking of any other type of property, and the lack of contractual privity between the owners and the condemnor is in no sense a determinative factor.
Treating the allegations of the further defense as true, as is the rule on demurrer, Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, we conclude that the interveners have a vested property right of value in the restrictions imposed on the lots sought to be condemned and that the proposed use of the property amounts in a constitutional sense to a taking or damaging of this property right, for which the interveners are entitled to compensation commensurate with any loss they may sustain. Art. I, Sec. 17 of the Constitution of North Carolina; Fifth Amendment of the Constitution of the United States.
Except as herein modified, the judgment of the court is affirmed.
Modified and affirmed.
