43 S.E. 542 | N.C. | 1903
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., and 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 the code, ch. 30, as intimated by us to be the proper remedy (67) whenever the natural outlet is inadequate or choked up, in Porter v. Armstrong, 129 N.C. at p. 107; Mizzel v. McGowan, ib., 93, 85 Am. St., 705.
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.), sec. 233 (3), 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, *49
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 actions 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. Featherston,
No error.
Cited: Yount v. Setzer,
(68)
