Town of Roper v. Leary

• Decision Date: 23 February 1916
• Docket Number: 12.
• Parties: TOWN OF ROPER v. LEARY.
• Court: North Carolina Supreme Court

87 S.E. 945

171 N.C. 35

TOWN OF ROPER v. LEARY.

No. 12.

Supreme Court of North Carolina

February 23, 1916

Appeal from Superior Court, Washington County; Rountree, Judge.

Action by the Town of Roper against J. S. Leary. From a judgment for plaintiff, defendant appeals. Affirmed.

Where defendant obstructed a ditch used for the drainage of a municipality, such obstruction, which might lead to serious consequences, may be enjoined, and a municipality need not wait to proceed by indictment.

This is a civil action, tried upon these issues:

(1) Was the ditch described in complaint a drain ditch for a part of the locality embraced by the town of Roper and some of its streets at time said town was incorporated? Answer: Yes.

(2) Had said drainage ditch existed and was same used for said drainage for the past 30 years? Answer: Yes.

(3) Did the defendant fill up said ditch upon his own land and thereby pond back water upon said streets and obstruct the proper drainage of same? Answer: Yes.

(4) Does the town of Roper empty sewage into said ditch, so as to create a nuisance? Answer: No.

From the judgment rendered, the defendant appealed.

Ward & Grimes, of Washington, N. C., for appellant.

Wm. M Bond, Jr., of Plymouth, for appellee.

BROWN J.

This action is brought by plaintiff to enjoin defendant from obstructing a ditch within the corporate limits of the town a small part of which crosses a corner of defendant's land. It is contended by defendant that injunction is not the proper remedy and that plaintiff should proceed by indictment. Both remedies may be available, and the remedy by injunction certainly is. To obstruct the drainage system of a city or town is a serious matter, and may amount to a public nuisance, and be extremely detrimental in its consequences to the community. To abate it the community, acting through its officials, need not wait until an indictment can be tried but may ask for injunctive relief to abate the nuisance at once.

It is contended that the court erred in refusing to submit certain issues tendered by defendant. The issues submitted and answered by the jury are very comprehensive, and cover every phase of the controversy as set out in the pleadings, and under them either party had opportunity to offer any pertinent evidence. It is not every matter averred on one side and denied on the other that in a legal sense is an issue. The only issues proper to be submitted are those matters alleged on one side and denied on the other, which are necessary to determine the controversy. Kirk v....