Frink v. Stewart

• Decision Date: 28 February 1886
• Citation: 94 N.C. 484
• Court: North Carolina Supreme Court
• Parties: L. FRINK v. KATE STEWART, et al.

94 N.C. 484

L. FRINK

v.KATE STEWART, et al.

Supreme Court of North Carolina.

February Term, 1886.

Motion to continue an injunction to the hearing, in a cause pending in the Superior Court of BRUNSWICK county, heard by MacRae, Judge, at Chambers, in Lumberton, on April 14th, 1885.

His Honor refused to continue the injunction, and the plaintiff appealed.

The facts appear in the opinion.

Mr. P. D. Walker, for the plaintiff .

Messrs. Waddell and Elliott, filed a brief for the defendants .

MERRIMON, J.

We think it very plain that the plaintiff is not entitled to relief by injunction. He alleges simply, repeated trespasses, of slight importance, on a small portion of his land, and it is plain to be seen from the complaint, that they are not such as have done, and that the probable continuance of which, will do him, irreparable injury--indeed, such injury done or anticipated, is not alleged. It is apparent from the complaint and the affidavits produced in support of the motion for an injunction, that the trespasses complained of, if indeed they are such, are of no great moment, and are such as can be easily compensated for in damages.

It moreover appears, that the substantial question at issue between the parties, is whether or not a public street or highway, passes over a portion of a lot of land owned by the plaintiff. The alleged trespasses consisted in the removal of certain posts, which the plaintiff caused to be erected in and across the alleged street, on his own land, and the passing and repassing over the same of vehicles, &c.

The plaintiff seems to make such repeated trespasses, and the alleged fact that the defendants are both “pecuniarily irresponsible,” the main ground of his application for an injunction.

But he has not tested the effectiveness of his simple legal remedy. This is the only action he has brought, so far as appears, and it is probable that a recovery of damages by him, will suffice to prevent further trespasses. Indeed, the nature of the controversy, as developed by the complaint and affidavits, obviously suggest that such a recovery would have such effect.

The defendant, in her affidavit, avers that her co-defendant is her servant man, and that she “is not insolvent, but has property amply sufficient to meet any damage which may be awarded against her, and is entirely free from debt.” So that the allegation that the defendant is pecuniarily irresponsible, is negatived, if indeed, such allegation could help the plaintiff in...