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Morgan v. High Penn Oil Co. - 238 N.C. 185, 77 S.E.2d 682 (1953)

Rule:

Negligence and nuisance are distinct fields of tort liability. While the same act or omission may constitute negligence and also give rise to a private nuisance per accidens or in fact, and thus the two torts may coexist and be practically inseparable, a private nuisance per accidens or in fact may be created or maintained without negligence. Most private nuisances per accidens or in fact are intentionally created or maintained, and are redressed by the courts without allegation or proof of negligence.

Facts:

Appellees G. W. Morgan and Alta Lee Morgan ("the Morgans") filed a civil action that sought to enjoin appellants, the Southern Oil Transportation Company (“Southern Oil”) and High Penn Oil Company (“High Penn”), from continuing its operation of an oil refinery and temporary damages. The trial court found in favor of the Morgans and denied Southern Oil and High Penn’s  motion for nonsuit. Southern Oil and High Penn challenged the decision.

Issue:

Did the trial court err by instructing the jury regarding a private nuisance when that was not the legal theory under which the Morgans asserted their claim?

Answer:

Yes

Conclusion:

The Supreme Court of North Caroline reversed and ordered a new trial for Southern Oil and High Penn. The lower court had improperly instructed the jury by giving an instruction regarding a private nuisance when that was not the legal theory under which the Morgans asserted their claim. The Court found, in High Penn’s situation, that the Morgans had established an actionable nuisance claim at trial but in their complaint, the Morgans contended that Southern Oil and High Penn were negligent and careless in constructing and operating the refinery. Because negligence and private nuisance were distinct fields of tort liability, the Court found that High Penn was entitled to a new trial. In Southern Oil's case, the Court found that the action should have been involuntarily nonsuited because recovery could not be had in a civil action on the basis of matters alleged, but not proved, or proved but not alleged.

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