Kass v. Hedgpeth
| Decision Date | 22 May 1946 |
| Docket Number | No. 674.,674. |
| Citation | 38 S.E.2d 164,226 N.C. 405 |
| Court | North Carolina Supreme Court |
| Parties | KASS et al. v. HEDGPETH. |
Appeal from Superior Court, Robeson County; Clawson L. Williams, Judge.
Suit by Henry Kass, R. E. Wilkins, Col-vert Stephens, T. M. Crawford, Dr. Gates McKaughan, L. J. Huntley, E. A. Allen, Jr., on behalf of themselves and all others similarly situated who may come in and make themselves parties to the action and contribute to the expense thereof, against Romulus A. Hedgpeth to restrain defendant from constructing an addition to his tobacco warehouse. To review a decree continuing to the hearing the order restraining defendant from making proposed addition, defendant excepted and appealed.
Error.
This was an action to restrain the defendant from constructing an addition to his tobacco warehouse in the City of Lumberton.
It was alleged that the construction of buildings for business purposes within the area in which defendant intends to erect an addition to his warehouse was prohibited by city ordinance; and that the operation, at that place, of a warehouse for the auction sale of leaf tobacco would attract undesirable persons and practices and injuriously affect the comfort, welfare and property rights of the plaintiffs, residents and property owners in the vicinity. Temporary restraining order was issued on the facts alleged in the complaint.
The defendant denied that any valid ordinance prohibited his proposed construction, or that the addition of 100 feet to the warehouse which he had operated there for several years would constitute a nuisance or injuriously affect any property or other rights of plaintiffs. It was further alleged that the city had expressly authorized issuance of building permit for the construction of the proposed addition to his warehouse. The city was not a party to the action.
The judge, who heard the matter below upon the pleadings, affidavits and minutes of the City Board, found that the ordinance and amendment thereto referred to in the pleadings did not constitute a valid exercise of the powers conferred upon cities and towns by G.S. § 160-172, for establishing zoning regulations; and that the defendant's warehouse as now located was not and had not been conducted so as to constitute a nuisance. However, it was held that the City Commissioners were without lawful authority to cause the issuance of a building permit for the proposed construction, and it was adjudged and decreed that the restraining order restraining defendant from making the proposed addition to his warehouse be continued to the hearing.
Defendant excepted and appealed.
Frank D. Hackett and McKinnon & Sea-well, all of Lumberton, for plaintiffs-appellees.
Varser, McIntyre & Henry, of Lumber-ton, for defendant-appellant.
The findings of fact made by the judge below were in accord with the evidence presented and we are not disposed to disturb them, but we do not reach the conclusion therefrom that the restraining order should have been continued to the hearing.
It was properly found that neither the original zoning ordinance, which did not include defendant's land within the area prohibited for business structures, nor the amendment thereto which purported to do so, was adopted in accordance with the enabling provisions of G.S. § 160-175 and § 160-176,...
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Morgan v. High Penn Oil Co., 667
...If you fail to so find, you will answer it 'No." The core of this instruction is lifted bodily out of its context in Kass v. Hedgpeth, 226 N.C. 405, 38 S.E.2d 164, and is without relevancy to the pleadings, the testimony, and the issues in the instant action. What has already been said resp......
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State v. Scoggin
...It has no inherent power and must exercise delegated power strictly within the limitations prescribed by the Legislature. Kass v. Hedgpeth, 226 N.C. 405, 38 S.E.2d 164. So much for the principles of law which must control decision here. In considering the ordinance under which defendant sta......
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State v. McGee
...the Legislature. Municipal corporations have no inherent police powers and can exercise only those conferred by statute. Kass v. Hedgepeth, 226 N.C. 405, 38 S.E.2d 164; Rhodes, Inc. v. City of Raleigh, 217 N.C. 627, 9 S.E.2d 389, 130 A.L.R. 311; State v. Dannenbergt, 150 N.C. 799, 63 S.E. 9......
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Heaton v. City of Charlotte
...or an amendment thereto which is not adopted in accordance with the enabling statutes is invalid and ineffective. Kass v. Hedgpeth, 226 N.C. 405, 38 S.E.2d 164; Eldridge v. Mangum, 216 N.C. 532, 5 S.E.2d 721. However, a municipal zoning ordinance will be presumed to be valid, and the burden......