#### O. F. CLINARD and Wife, MILDRED CLINARD, v. TOWN OF KERNERSVILLE.

(Filed 8 June, 1940.)

1. Municipal Corporations § 16 — Judgment held to embrace permanent damages resulting from operation of municipal sewage disposal plant.

In this action to recover damages resulting to lands from defendant municipality’s sewage disposal plant, the judgment, considered in the light of the pleadings, evidence and charge of the court, notwithstanding the absence of the word “permanent” in the issue submitted, *is held*to embrace permanent damages from every source of injury in the operation of *687the plant, including dye water from a manufacturing plant discharged through the municipality’s system, and to give the municipality an easement for the continued operation of the plant in the same manner.

2. Trial § 37—

An issue will he construed with reference to the pleadings, evidence and charge of the court pertinent thereto.

Appeal by defendant from *Alley, J.,*at November Term, 1939, of Forsyth.

No error.

*Lovelace & Xirlcman and Benbow & Hall for plaintiffs, appellees.*

*Manly, Hendren & Womble and I. X. Carlyle for defendant, appellant.*

Seawell, J.

This is an action for tbe recovery of damages from tbe town of Kernersville for wrongfully operating a sewage disposal plant on tbe banks of Abbotts Creek near tbe property of tbe plaintiffs, wbicb it is alleged, by reason of tbe odor and tbe noxious properties of tbe discharged sewage, bas greatly damaged plaintiffs’ premises. Tbe court was requested to allow permanent damages for tbe injury done to plaintiffs’ property, and tbe defendant is interested in tbe character and extent of tbe easement and tbe rights thus acquired by it.

When this case was here *before*— Clinard *v. Kernersville,*215 N. C., 745, 3 S. E. (2d), 267 — tbe town of Kernersville and Vance Knitting Company were defendants. It was then complained that much of tbe injury done to plaintiffs’ premises was caused by waste products from tbe Vance Knitting Company, conveyed through tbe Kernersville sewerage system. Under tbe facts of that case, wbicb are tbe same as now, tbe Court held tbe evidence insufficient to sustain a cause of action against tbe Vance Knitting Company.

It is now complained that tbe issues, pertinent evidence, and instructions of tbe court were not sufficient to settle tbe liability of tbe town of Kernersville with respect to tbe dye water and waste products originating with tbe Vance Knitting Company and still discharged through its sewerage system, but that tbe mode of trial left .the municipality open to further assault by tbe plaintiffs for additional damages on that score.

A thorough examination of all tbe record convinces us that tbe apprehension is not well founded. Consideration by tbe jury of damages due to tbe dye water — an item supposed by defendant not to be caught within tbe net of procedure — was, we think, inevitable, and tbe judgment is sufficient to protect tbe defendant and to secure it in any rights wbicb it may have obtained thereby with respect to tbe discharge of this and other sewage from its plant. *Gibbs v. Higgins,*215 N. C., 201, 1 S. E. (2d), 554; *Stelges v. Simmons,*170 N. C., 42, 44, 86 S. E., 801; *Coltrane v. Laughlin,*157 N. C., 282, 72 S. E., 961.

*688We do not regard tbe failure to insert tbe wol’d “permanent” in tbe issue as to damages material. It might have been better to include it, but tbe issue must be construed with respect to both tbe pleadings and tbe evidence and such part of tbe instructions of tbe court as may be pertinent to it; *Coltrane v. Laughlin, supra; Holloway v. Durham,*176 N. C., 550, 97 S. E., 486; *Propst v. Caldwell,*172 N. C., 594, 90 S. E., 757; *Southerland v. R. R.,*148 N. C., 442, 62 S. E., 517; *Union Bank v. Oxford,*116 N. C., 339 (340), 21 S. E., 410; *McKimmon v. Caulk,*170 N. C., 54, 56, 56 S. E., 809; *Weston v. Lumber Co.,*162 N. C., 165, 77 S. E., 430; *Gillam v. Edmonson,*154 N. C., 127, 69 S. E., 924; *Fayerweather v. Ritch,*195 U. S., 277; *Weidner v. Lund,*105 Ill. A., 454, 456; *Oglesby v. Attrill,*20 Fed., 570; *Gulling v. Washoe County Bank,*29 Nev., 257, 260, 89 P., 25; and tbe judgment, considered as *res judicata,*must be construed with reference to them all, as well as to issuable matters which might have been litigated under tbe pleadings. *Buchanan v. Harrington,*152 N. C., 333, 335, 67 S. E., 747. We think tbe record is conclusive as to tbe character of damages awarded tbe plaintiffs. *Lightner v. Raleigh,*206 N. C., 496, 174 S. E., 272; *Teseneer v. Mills Co.,*209 N. C., 615, 184 S. E., 535.

Other exceptions in tbe record are not meritorious.

We find

No error.