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Allstate Insurance Co. v. Oxendine3/19/2002
However, at the time of the injury, Locklear's conduct had not been sufficiently continuous and of such duration to amount to a nuisance. See Benton, 253 N.C. at 703, 117 S.E.2d at 777. Furthermore, even "if the existence of a nuisance is assumed, the evidence is insufficient to fix defendant with knowledge and to show that defendant knowingly suffered it to continue." Id at 703-04, 117 S.E.2d at 777. There was no evidence, or even forecast of evidence, of any earlier negligent use of the drums by Locklear which would have alerted Oxendine. Locklear stated in his deposition that he burned trash on Oxendine's property a couple of times a month and always made sure the bag was completely inside the drum. On 21 January 1995, he burned the bag in a drum, watched the fire until there was only smoke, and then did other outdoor chores. Oxendine was asleep in the morning and at work during the afternoon when Locklear failed to keep a proper lookout.
There is no evidence of burning activities by Locklear of such duration or in such a manner as to amount to a nuisance. There is no evidence that Oxendine, with knowledge of such conduct, permitted it to continue.
Accordingly, we reject plaintiff's assignment of error and affirm the order of the trial court.
AFFIRMED.
JUDGES WYNN and WALKER concur.
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