#### G. H. BLACK v. TOWN OF BESSEMER CITY.

(Filed 8 May, 1929.)

Municipal Corporations E d — Where jury finds that plaintiff sustained no substantial damages from sewage disposal plant city not liable for nominal damages — Eminent Domain.

Plaintiff is not entitled to nominal damages in an action against a city for the constructive taking of property by depreciating its value by its sewage disposal plant when the city has the right of eminent domain and the jury has found that no actual damage was sustained.

Civil actioN, before *Harding, J.,*at September Term, 1928, of GASTON.

Tbe plaintiff instituted an action against tbe defendant to recover damages for injury to bis land by reason of tbe erection and operation of a sewage disposal plant.

Evidence was offered in behalf of tbe plaintiff that tbe plant produced noxious odors and gases wbicb vitiated tbe air and thus depreciated tbe value of bis property, and that in addition, tbe stream flowing through bis land was polluted by tbe effluent from tbe disposal plant and by water diverted from Long Creek into pipes, septic tanks and reservoirs, and discharged into a stream flowing through tbe land of tbe plaintiff.

Several issues were submitted to tbe jury. Tbe first issue related to tbe ownership of tbe land, wbicb was answered by consent.

Tbe second issue was as follows: “Did tbe defendant divert tbe water from Long Creek through its tanks and water system into Crowder’s Creek and thereby pollute tbe waters running through and over plaintiff’s lands and damage plaintiff’s land, as alleged?”

Tbe jury answered this issue, “No,” and returned its verdict. Judgment was entered in favor of tbe defendant and tbe plaintiff appealed.

*Henry L. Kiser and George W. Wilson for plaintiff.*

*S. J. Durham, for defendant.*

*196Pee Oueiam.

Tbe plaintiff insisted that bis property bad been damaged not only by the increase of the volume of water resulting from the diversion of water from Long Creek by the city, but also by reason of noxious odors and gases wbicb invaded *the*atmosphere so that pollution of botb water and air resulted in serious injury to bis proprietary rights. Consequently, the plaintiff insisted that the pollution of the stream and of the air amounted in law to a taking of bis property, and, therefore, the trial judge should have instructed the jury to award nominal damages at least. This position would be sound except for the provision of C. S., 2805, wbicb expressly confers upon municipalities the right to “construct, establish, maintain and operate” sewerage systems, and in order to make such power effective the right of eminent domain is conferred. *Hines v. Rocky Mount,*162 N. C., 409, 78 S. E., 410; *Rhodes v. Durham,*165 N. C., 679, 81 S. E., 938; *Smith v. Morganton,*187 N. C., 801, 123 S. E., 88.

Tbe plaintiff further insists that the issue submitted by the trial judge and answered by the jury excluded the element of damages claimed by him, arising from the pollution of the air, by confining bis recovery exclusively, to the aspect of diversion of water. It appears, however, from the record that this element of injury was submitted to the jury in these words: “It is proper for you, however, to consider evidence of offensive odors, evidence of the presence of mosquitoes and flies, evidence of pollution of the air made there by offensive odors.”

A close scrutiny of the record does not disclose error of law, and the judgment rendered is

Affirmed.