#### G. W. MORGAN and Wife, ALTA LEE MORGAN, v. HIGH PENN OIL COMPANY and SOUTHERN OIL TRANSPORTATION COMPANY, INC.

(Filed 10 December, 1952.)

Appeal and Error § 2—

An order overruling a demurrer *ore tenus*is not appealable.

Appeal by defendants from *Sink, J.,*at September Term, 1952, of Guilford.

Civil action based on an alleged private nuisance heard upon a demurrer *ore tenus*to the complaint.

These are the controlling facts in chronological order:

1. The plaintiffs, G. *W.*Morgan and his wife, Alta Lee Morgan, filed their complaint at the time of the issuance of the summons. The complaint alleges in detail that the plaintiffs own and occupy a tract of land worth $25,000 in Guilford County, North Carolina; that the defendants, High Penn Oil Company and Southern Oil Transportation Company, Inc., operate an oil refinery and an oil distribution center in permanent structures on adjoining premises owned by the defendant, Southern Oil *616Transportation Company, Inc.; that the oil refinery and the oil distribution center are so constructed, and so operated by the defendants as to cast large quantities of noxious fumes and gases onto; the neighboring land of the plaintiffs, causing them to suffer great annoyance and discomfort in the enjoyment of their property and inflicting upon such property substantial damage; and that the continued maintenance of the resultant nuisance by the defendants will destroy both the usefulness and value of the land of the plaintiffs. The plaintiffs pray for a perpetual injunction enjoining the continuance of the alleged wrongful acts of the defendants, or for damages totaling $25,000 “in the event such an injunction is not granted.”

2. The defendants filed a joint answer within the time appointed by law. The answer admits that the Southern Oil Transportation Company, Inc., owns the lands adjoining the tract claimed by the plaintiffs; that the Southern Oil Transportation Company, Inc., acting alone, maintains an oil distribution center on such premises; and that the High.Penn Oil Company, acting alone, operates an oil refinery on such premises; It denies, however, that either of the defendants conducts its business in such a manner as to constitute a nuisance, or to cause injury to neighboring lands or landowners.

3. When the action came on to be heard at the September Term, 1952, of the Superior Court of Guilford County, the defendants interposed a demurrer *ore ienus*on the theory that the complaint does not state facts sufficient to constitute a cause of action because it “alleges a private nuisance and then alleges as the measure of damages . . . the difference between the fair market value of the property before the alleged acts and the fair market value after the alleged acts.” Judge H. Hoyle Sink, who presided, entered an order overruling the demurrer *ore ienus,*and the defendants appealed, assigning such ruling as error.

*Frazier*<£ *Frazier for plaintiffs, appellees.*

*Roberson, Haworth & Reese for defendants, appellants.*

EeviN, J.

This question arises at the threshold of the appeal: Is an order overruling a demurrer *ore ienus*appealable ?

The answer is “No.” *Hood, Comr. of Banks v. Motor Co.,*209 N.C. 303, 183 S.E. 529; *Griffin v. Bank,*205 N.C. 253, 171 S.E. 71; *Mountain Park Institute v. Lovill,*198 N.C. 642, 153 S.E. 114; *Chambers v. R. R.,*172 N.C. 555, 90 S.E. 590; *Shelby v. Railway Co.,*147 N.C. 537, 61 S.E. 377; *Hall v. Railroad,*146 N.C. 345, 59 S.E. 879; *Burrell v. Hughes,*116 N.C. 430, 21 S.E. 971; *Joyner v. Roberts,*112 N.C. 111, 16 S.E. 917; *Sprague v. Bond,*111 N.C. 425, 16 S.E. 412; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 676.

*617Tbe reasons for tbe rule tbat an appeal does not lie from an order overruling a demurrer *ore tenus*were tbus stated in *Joyner v. Roberts, supra:*“It is contended, however, tbat tbis is, in effect, a demurrer *ore tenus,*and tbat, therefore, an appeal lies. From tbe overruling of a formal demurrer an appeal does lie. But there is tbis protection against abuse, tbat if tbe demurrer is frivolous, judgment is at once granted tbe plaintiff. Tbe Code, section 388. (Now G.S. 1-219.) But there is no such remedy on overruling tbis motion. ... If an appeal lay in such cases, every defendant in every case could procure six or twelve months’ delay by simply objecting to tbe jurisdiction or to tbe sufficiency of tbe complaint, no matter bow plain tbe case or bow utterly unfounded tbe grounds of tbe objection, since, as has been already said, judgment cannot be entered as when a frivolous demurrer is filed. To rule tbat an appeal lay in such ease would be simply to establish a ‘stay-law.’ There is less excuse for an appeal in tbis particular respect, since tbe defendants cannot possibly be damaged by delaying tbe appeal till tbe final judgment, because, even though they should fail to note an exception, tbe objection to tbe jurisdiction and for failure of tbe complaint to state a cause of action can still be taken advantage of for tbe first time in tbis Court. Eule 27 of tbe Supreme Court. (Now Eule 21.) Those grounds of objection cannot be waived by proceeding to trial . . . Tbe hardship, if any, is on tbe other side, who may find (if be has not a cause of action' or tbe Court has not jurisdiction) tbat bis victory is barren, and tbat be has the costs to pay for bis bootless clamor. . . . There are some questions which, by tbe reiterated and uniform adjudications in regard to them, should be deemed settled. Tbis is one of them.”

Appeal dismissed.