Torts II, Pages 859–861

Morgan v. High Penn Oil Co.

Supreme Court of North Carolina, 1953


Plaintiff owned nine acres of land with his house, restaurant, and accommodations for thirty-two trailers. Defendant operated an oil refinery 1,000 feet away from plaintiff's house. A few days a week, the refinery emitted so much gas and odor that everyone within two miles would become sick. This substantially impaired the use and enjoyment of plaintiff's land, but defendant refused to stop.

Procedural History:

Jury said there was a nuisance and assessed plaintiff's damages at $2,500, which the trial court entered judgment on.

Defendant's Arguments:

  • The refinery was a modern plant in general use, was not intended to emit such gases, and only did emit them once when the plant broke down.

  • Private nuisances are classified as nuisances per se and/or per accidens, but the refinery was a lawful enterprise and thus could not be a nuisance per se. Thus it would have to be proved that defendant operated the refinery in a negligent manner. As there was no such evidence, defendant could not be liable for nuisance.


    • Per se means at law.

    • Per accidens means in fact.


Can business become a nuisance even though it is lawful and not negligently operated?


  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 860, Paragraph 2

    [P]rivate nuisances may be classified as nuisances per se or at law, and nuisances per accidens or in fact. A nuisance per se or at law is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances per accidens or in fact are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated


One does not have to be negligent for his operation to become a nuisance per accidens. Negligence and nuisance are distinct fields of liability. Nuisance is a field of tort liability rather than a single type of conduct. The invasion may be intentional or unintentional.

Here, defendant intentionally and unreasonably caused let noxious gases and odors to escape onto plaintiff's land despite plaintiff expressing his concerns to it.


Yes, a business can become a nuisance even though it is lawful and not negligently operated. New trial ordered due to errors in the jury instructions