Porter v. Armstrong

• Decision Date: 10 March 1903
• Parties: PORTER et ux. v. ARMSTRONG et al.
• Court: North Carolina Supreme Court

43 S.E. 542

132 N.C. 66

PORTER et ux. v. ARMSTRONG et al.

Supreme Court of North Carolina

March 10, 1903

Appeal from superior court, Pender county; Bryan, Judge.

Action for an injunction by E. Porter and wife against T. J Armstrong and others. Judgment dismissing the suit, and plaintiffs appeal. Affirmed.

Injunction will not issue to restrain the threatened blocking up of a natural depression into which the water from plaintiff's land naturally drained, as there is an adequate remedy at law by action for damages, or by cleaning out and deepening the channel, as authorized by chapter 30 of the Code.

John D Bellamy and Stevens, Beasley & Weeks, for appellants.

J. T Bland and E. K. Bryan, for appellees.

CLARK C.J.

The court below dismissed the action because the complaint did not state a cause of action. The averments are that the defendant threatens to block up a natural depression into which the water from the plaintiff's land naturally drains, and that this will pond the water back upon the plaintiff's land, to his irreparable damage, wherefore he asks for an injunction.

An injunction will not lie when there is an adequate remedy at law, and the plaintiff has at least two; i. e., an action for damages after the apprehended act has been committed, or to clean out and deepen, or excavate, if necessary, the channel on the defendant's land, as authorized by Code, c. 30, as intimated by us to be the proper remedy whenever the natural outlet is inadequate or choked up, in Porter v Armstrong, 129 N. C., at page 107, 39 S.E. 799; Mizell v. McGowan, 129 N.C. 93, 39 S.E. 729. It is true that the plaintiff is not restricted to the relief demanded in his complaint, but may have any remedy which the facts alleged and proved entitle him to receive. Clark's Code (3d Ed.) § 233 (2), and cases cited. But the allegations here are not of any act done, nor of any damages actually sustained, but of acts threatened to be done, from which damage is apprehended. Apart from the fact that an injunction will not lie because there is full remedy at law, the complaint does not state a cause of action on which to procure an injunction, in that it is not alleged that the defendant is insolvent, and unable to respond in damages. Wilson v. Featherstone, 120 N.C. 449, 27 S.E. 121; Land Co. v. Webb, 117 N.C. 478, 23 S.E. 458. Nor is it sufficient to allege, as here, in general terms that the injury will be irreparable, but...