Cllnard v. City Of Winston-salem

• Decision Date: 11 April 1917
• Docket Number: (No. 355.)
• Citation: Cllnard v. City Of Winston-salem, 173 N.C. 356, 91 S.E. 1039 (N.C. 1917)
• Parties: CLLNARD et al. v. CITY OF WINSTON-SALEM.
• Court: North Carolina Supreme Court

91 S.E. 1039

(173 N.C. 356)

CLLNARD et al.

v.CITY OF WINSTON-SALEM.

(No. 355.)

Supreme Court of North Carolina.

April 11, 1917.

Appeal from Superior Court, Forsyth County; Long, Judge.

Action for damages and mandamus by B. C. Clinard and others against the city of Winston-Salem.From a judgment for plain-

tiffs for the mandamus and damages, defendant appeals.Error.

Manly, Hendren & Womble, of Winston-Salem, for appellant.

L. M. Swink, David H. Blair, Gilmer Korner, Jr., all of Winston-Salem, for appellees.

CLARK, C. J.This is an action for damages and a mandamus because of the refusal of the defendant to issue a building permit.The defendant had issued a permit to put up an additional room to a building, but, it subsequently coming to the knowledge of the authorities that it was claimed that the location was part of an alley, withdrew the permit Whether the additional room sought to be built would be within the bounds of the alley depended on whether the alley had been widened by dedication and user.The alley had originally been laid off in 1890, 15 feet wide, but it was claimed that subsequently the heirs to the property, in the partition thereof, had set the houses back and made the alley 18 feet wider, and that it had been recognized and used by the public as of that width, adversely and of right, for more than 20 years.There was evidence to that effect, and the city revoked the license until this matter could be determined.

In this action the jury found that the width of the alley had not been increased, and while the issue, "Did the defendant unlawfully refuse to issue the permit for building the house?" was found in the affirmative, the.word "unlawfully" must be treated as surplusage, for that was a conclusion of law, and not justified by the evidence any further than meaning that the plaintiff was entitled to have such license issued, which should have been the form of the issue.

The second issue, "Were plaintiffs prevented from using and building on their property by threats of indictment arbitrarily made by defendant?"the court should have instructed the jury to answer, "No."The evidence was that O. B. Eaton, the witness for the defendant, told the plaintiffs' foreman that the permit to build the additional room had been withdrawn, and that it would be a violation of the ordinance to proceed with the building until the matter was settled and would make him liable for indictment, which was correct.The charter of the defendant provides:

"The board of aldermen should have the power to enact ordinances in such form as they may deem advisable as follows: * * * To grant permits for the construction of buildings and other structures, and to prohibit the construction of any building or structure which in the judgment of the board of aldermen may be a nuisance or of injury to adjacent property or to the general public; * * * to regulate and control the character of buildings which shall be constructed or permitted to be and remain in any part of the city of Winston; * * * to define and establish fire limits and prevent the location of wooden or other buildings within said fire limits and in any part of the city wherethey may increase the clanger of fire; to regulate and describe what character of building? shall be constructed within the said limits, and provide for the conditions under which such buildings may be erected."

In pursuance of this authority, the defendant enacted the following ordinance:

"Erecting Building without Permit.—It shall be unlawful for any person, firm or corporation to erect any building within the corporate limits of the city of Winston without first submitting the plan of the same to the mayor and chairman of the street committee and receiving a written or printed permit signed by the mayor and said chairman to erect the same.Any person, firm or corporation violating the foregoing ordinance shall be fined twenty-five...