Cobb v. Atlantic Coast Line R. Co.

• Decision Date: 20 September 1916
• Docket Number: 62.
• Parties: COBB v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: North Carolina Supreme Court

89 S.E. 807

172 N.C. 58

COBB v. ATLANTIC COAST LINE R. CO. ET AL.

No. 62.

Supreme Court of North Carolina

September 20, 1916

Appeal from Superior Court, Wilson County; Devin, Judge.

Action for injunction by one Cobb against the Atlantic Coast Line Railroad Company and another. Temporary restraining order continued to the final hearing, and the defendants except and appeal. Affirmed.

This is an action to restrain the defendants, the Atlantic Coast Line Railroad Company and the Toisnot Township Road Committee from entering upon the land of the plaintiff and changing a public road, and from committing other trespasses thereon. The plaintiff alleges, in substance, that he owns a tract of land in Toisnot township, Wilson county, lying on a public road from Elm City to Sharpsburg, and adjoining a quarry of the defendant the Atlantic Coast Line Railroad Company and others; that the two defendants unlawfully and without the consent of plaintiff are about to change said road, which runs in front of plaintiff's residence, and locate the same in the rear of same, and in doing so take about an acre of plaintiff's lands; that there is absolutely no public necessity for a change in said roadway, and no public demand therefor; that it will not shorten travel; that no one lives upon said roadway, and the sole purpose of changing the said roadway is a scheme on the part of the Atlantic Coast Line Railroad Company, by and with the consent of the Toisnot Township Road Committee, to unlawfully take possession of the plaintiff's lands, to destroy the old roadway without the authority of law, and to close the same up; that the defendant the Atlantic Coast Line Railroad Company owns a quarry immediately adjoining plaintiff; that some few years ago it was engaged in blasting rock in the quarry, and while so doing continually trespassed upon plaintiff by throwing rock, stone, and débris upon his premises, endangering plaintiff's life and the lives of his family, employés tenants, and stock; that the Atlantic Coast Line is about to re-engage in blasting in this quarry, and that it will do so in the same manner as previously, and will again invade plaintiff's home and premises, and continually and continuously throw and hurl rock, stone, and débris upon the same, as it previously did, if not restrained by the courts. The defendants filed answers in which all the material allegations of the complaint are denied. A temporary restraining order was issued, and on the return day the plaintiff offered evidence tending to prove all the allegations of his complaint, and the defendants offered evidence to the contrary. The temporary restraining order was continued to the final hearing, and the defendants excepted and appealed.

In action to enjoin railroad from using its quarry so as to trespass on plaintiff's premises by throwing rock débris, etc., and endangering lives of plaintiff and his family, where answer raised an issue for the jury, the court properly continued restraining order until final hearing.

F. S. Spruill, of Rocky Mount, for appellants.

H. G. Connor, Jr., of Wilson, for appellee.

ALLEN J.

We concur in the positions taken by the learned counsel for the defendants that the courts will not ordinarily interfere by injunction with the operation of industrial and other enterprises which aid in the development of the country, nor will they attempt to restrain the free exercise of discretion vested in public officers, when used for the benefit of the public, but these questions are not now before us.

The allegations of the plaintiff are that the members of the road committee are not using the powers vested in them for the public good, and that, on the contrary, they and their codefendant have entered into an arrangement to destroy the public road running in front of the plaintiff's house and to open a new road in the rear of the house and over the land of the plaintiff solely for the benefit of the defendant railroad, and to enable it to run an enterprise of its own more successfully, and if these allegations are true, the road committee is exceeding its powers, and the taking of the plaintiff's land would be for a private, not a public, use, and illegal. There is no power under the Constitution to take private property except for a public use and then only upon just compensation ...