Stratford v. City of Greensboro

• Decision Date: 07 March 1899
• Citation: 32 S.E. 394,124 N.C. 127
• Parties: STRATFORD v. CITY OF GREENSBORO et al.
• Court: North Carolina Supreme Court

32 S.E. 394

124 N.C. 127

STRATFORD v. CITY OF GREENSBORO et al.

Supreme Court of North Carolina

March 7, 1899

Appeal from superior court, Guilford county; Robinson, Judge.

Action by W. O. Stratford against the city of Greensboro and another for injunction. There was a judgment for defendants, and plaintiff appeals. Reversed.

An appropriation of property for a private use by a municipality may be restrained, though there be no fraud.

J. T Morehead, for appellant.

Bynum & Taylor, R. R. King, and Shaw & Scales, for appellees.

MONTGOMERY J.

At the time of the commencement of this action the defendant Cone was the owner of about 1,600 acres of land (less that part of it which he had sold to the Cone Export & Commission Company of New York, in which company he was a stockholder), situated on the north and northeast of the city of Greensboro, and lying partly within the corporate limits of the city; that part lying within the city limits containing between 300 and 500 acres. That property was connected with the city by the street, Summit avenue. On the 21st and 24th days of January 1896, the board of aldermen of Greensboro made an order that a portion of Church street be widened, and then extended as a new street from Lindsay street, in a north-easterly direction, to and on the line of Summit avenue, and then over said avenue, as at first laid out, to the corporate limits of the city, and that the strip of land necessary for the street be condemned according to law. On the 7th of February following, the board made an order providing for the borrowing of a sum of money not exceeding $15,000 for the purpose of opening and building the streets referred to in the orders of the 21st and 24th days of January, 1896, and repairing other streets, and other public improvements in the city, and also for an election to be held for the purpose of submitting the question of the creation of the debt to the qualified voters of the city. The plaintiff, a resident and taxpayer of Greensboro, brought this action to have these orders made by the board declared ultra vires and void, that the defendant board of aldermen be perpetually enjoined and restrained from holding the election and from opening the streets, and that defendant Cone be restrained from lending to his co-defendant, the city of Greensboro, the money with which to grade and macadamize, curb and bridge, the street to be called "Summit Avenue." In the complaint the plaintiff alleged that the opening and making of the new street and the widening of Church street were not necessary and not required for the public use of the city, but, on the contrary, that they were to be made for the private use and benefit of defendant Cone, that such benefits as might accrue to the city were only incidental, and that the aldermen had entered into a contract with defendant Cone to make the orders concerning the opening of the streets, by which many private advantages would accrue to him, upon his paying to the owners of the condemned lands the assessed or agreed damages, all of which are set out in paragraph 5 of the complaint, which is in the following language: "That in order to carry out his wishes of improving his property outlying the city limits, and other personal and private advantages to be gained thereby, he and his co-defendant, the city of Greensboro, acting through its mayor and aldermen have entered into a contract in which it is agreed that Cone shall pay for the right of way over the land of the property holders, except that of the First Presbyterian Church, over which said proposed Summit avenue will run, to build ten houses (whether cheap cottages for operatives, or other kind of houses, the plaintiff does not know, as nothing in said contract discloses) on his property lying within the city limits, and to move to Greensboro the offices of the Cone Export & Commission Company, a foreign corporation, which pays no taxes to the state, county, or city, and to lend to the city money sufficient (at 6% per annum, payable semiannually) to perform its part of the contract; and the city is to at once grade and macadamize, ditch and curb, said street, from North Elm street to the corporate limits, and to build an iron bridge over the track of the Southern Railway which said street crosses." The plaintiff further alleged that the defendant city was not authorized in law to take the property of its citizens for private use, although by such a course incidental benefit might accrue to the city, and that all of the acts done and threatened to be done under the orders of the board made in reference to the opening and widening of these streets were ultra vires. The judgment prayed for by plaintiff was that the alleged contract, and the action of the board in condemning the lands for the new street, be declared unlawful and ultra vires, that its action looking to the borrowing of money from Cone for the purposes alleged in the complaint is unlawful, and that defendants be restrained from further proceedings in the matter. In their several answers the defendants aver that the proceedings of the board were in good faith, that the opening of the new street and the widening of Church street were necessary and for the public benefit, and that of these matters the determination of the board was final. In the answer of the city, however, to paragraph 5 of the complaint, the contract alleged by the plaintiff as having been made between the city and Cone is denied out and out, while Cone in his answer avers that the contract was made as set out by the plaintiff in paragraph 5 of...