Burwell v. Bd. of Comm'rs of Vance Cnty.

• Decision Date: 31 October 1885
• Citation: 93 N.C. 73,53 Am.Rep. 454
• Court: North Carolina Supreme Court
• Parties: H. H. BURWELL and others v. THE BOARD OF COMMISSIONERS OF VANCE COUNTY.

93 N.C. 73

53 Am.Rep. 454

H. H. BURWELL and others

v.THE BOARD OF COMMISSIONERS OF VANCE COUNTY.

Supreme Court of North Carolina.

October Term, 1885.

This was a CIVIL ACTION to enjoin the commissioners of VANCE county from erecting a jail, heard before Shepherd, Judge, on Spring Circuit, 1885.

The county of Vance was formed and organized under an Act of the General Assembly, ratified and taking effect on March 5, 1881 (Acts of 1881, ch. 113), and was, by section 2, invested “with all the rights, powers and privileges of the counties of this State, except as hereinafter provided.”

Section 8 directs the commissioners immediately upon their election and qualification to “select a site for a court house and other necessary county buildings for said county, within the corporate limits of the town of Henderson.”

Section 14 is in these words: “The said commissioners are hereby authorized to purchase a site for the court house and necessary buildings specified in section eight, and to build thereon, in addition to said court house, a public jail for said county, and they may lay a tax for raising the amount of money necessary to the same.”

Pursuant to the authority conferred, the commissioners secured by donation a lot in said town, eligibly situated, rectangular in form, the equal opposite sides being respectively in length 205 and 180 feet, which was conveyed to them by deed of John S. Young and his wife Sallie J., on July 18, 1881, as therein declared, “for the purpose of erecting a court house and such other public buildings as to the board of commissioners may seem meet,” following substantially the language of the statute.

On August 1st, thereafter, the commissioners, in consideration of the gift covenanted personally with the donors so to locate the said court house as to make it front or face Young street in the town of Henderson, and in conformity with this agreement it has been located and built.

Deeming it an unsuitable place for the jail, the commissioners purchased from A. C. Zollicoffer a lot on Breckinridge street, some several hundred yards distant from the court house, whereon they proposed to erect, and were about to erect the public jail when this action was begun by the plaintiffs on May 30, 1885, to restrain them from proceeding with the work.

The plaintiffs uniting in the action, own lots near that on which the jail is to be put, the plaintiff Allen, a lot with a dwelling-house on the opposite side of the same street, the plaintiffs H. H. and J. S. Burwell, a lot next to that of the plaintiff Allen, and the plaintiff Lord, a lot 100 yards distant, whereon he operates a tobacco house and employs about seventy-five work-men.

They allege in their complaint that the erection of the jail is required in the act to be on the lot where the court house is, and to put it elsewhere is extra vires and unwarranted; and further, that it would, by reason of the emission of noxious vapors and gases and in other ways render residences on their several grounds unhealthful and uncomfortable to the occupants, and thus impair the value of their properties. To this end, they demand that the commissoners be enjoined from carrying out their purpose in the location of the jail at the designated place. After notice, and upon hearing the numerous affidavits offered by the parties, the plaintiffs moved for a preliminary restraining order, which was denied by the Judge, and they appealed.

Messrs. D. G. Fowle and E. C. Smith, for the plaintiffs .

C. M. Cooke, Esq., for the defendant .

SMITH, C. J. (after stating the case as above).

Two inquiries arise out of the contention of the parties which may be considered in determining the controversy.

I. Is a public jail a nuisance in a legal sense that persons residing on lots near or adjoining thereto may obtain an order to prevent its construction from the Court; and,

II. Are the board of commissioners restrained by the act creating the county from putting it any where else than upon the court house lot?

1. A jail being a public necessity, indispensable in the administration of justice; and therefore required to be built, cannot in in itself be a nuisance in the sense of the law, per se, though its mismanagement may render it obnoxious to those who live or do business near it, since in such case private convenience and comfort must yield to the common good. Assuming a discretion reposed in the commissioners in fixing the location of this house and their use of all proper means to render it, as far as practicable, inoffensive and not injurious to surrounding and near residents and places of business, those who occupy such could not rightfully claim the interposition of the Court to prevent its being built. For if they could thus have the aid of the Court, so could residents of any other part of the town, for the same and perhaps stronger reasons, because more thickly settled, as well as contiguous proprietors could prevent the erection elsewhere. The special damage in such case is incidental to what the...