Marshall v. Commissioners of Stanly Cnty.
| Decision Date | 31 October 1883 |
| Citation | 89 N.C. 103 |
| Court | North Carolina Supreme Court |
| Parties | JOSEPH MARSHALL and others v. COMMISSIONERS OF STANLY COUNTY. |
MOTION for an injunction heard at Fall Term, 1883, of STANLY Superior Court, before Gilmer, J.
In the year 1842, the town of Albemarle, the county-seat of Stanly county, was laid off into lots by the proper authorities according to law, and in the plat of the town there is a public square on which the court-house was erected. Other lots were sold to individuals and the money realized paid into the county treasury. At the sale, the plaintiffs allege that it was announced that the public square was to be and ever remain a public square, and by reason of such announcement and understanding, purchasers were induced to pay more for the lots adjacent to the square, which serves as an outlet from the buildings erected on said lots. The plaintiffs own improved lots fronting on the square. In September, 1883, the defendant commissioners made an order to sell a part of the public square, immediately fronting said improved lots, which order the plaintiffs insist is without authority of law, and they aver that the sale thereof would cause them irreparable injury, and that there exists no public necessity for such sale which has been advertised in pursuance of said alleged unlawful order. The plaintiffs have commenced an action against the defendants, in consequence of such order, and ask for an injunction restraining them from executing the same.
Notice was thereupon served upon the defendants to show cause why they should not be enjoined from selling any part of the public square.
The defendants appeared in accordance with the notice, and filed answer and affidavits, in which they deny that there was any announcement and understanding on the part of their predecessors who had charge of the county affairs at the time the town was laid off, that the public square would neverbe sold, and that the sale thereof will not injure the plaintiffs as alleged; and they allege that there is a public necessity for the sale of a part of said square--it is not needed for the public--the property will bring a large price--the county needs the funds--the sale of the lots will greatly add to the prosperity of the town and county--and the county is able to respond to such damages as may be sustained by the plaintiffs by reason of the sale.
The court, after consideration of the matters set forth in the pleadings and affidavits of the respective parties, and after argument of counsel, adjudged that the defendants be restrained from selling the lots until the final hearing of the action, and from this ruling the defendants appealed.
Mr. J. W. Mauney, for defendants .
The plaintiffs allege that the prospective injury to them, growing out of the alleged action taken and about to be taken by the defendants in the proposed sale of lots of land comprising a part of the public grounds on which the court-house of Stanly county was lately situated, if allowed to be consummated, will be irreparable in its character; and they...
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...well supported by the authorities upon this subject, citing 1 High on Injunctions (3d Ed.) § 6; Bishpam's Eq. (6th Ed.) § 405; Marshall v. Com'rs, 89 N.C. 103; Capehart Mhoon, 45 N.C. 30; Jarman v. Saunders, 64 N.C. 367; Lowe v. Com'rs, 70 N.C. 532, and other authorities. In the Marshall Ca......
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