117 N.C. 478 | N.C. | 1895
This is an action of trespass on land and an application for injunction to prevent'an irreparable damage. The ownership of the land in the plaintiff is admitted and the alleged entry also, and the defendant avers authority to do so under the Act of Assembly 1879 Cb. 146, for the better drainage of the low lands of Silver Creek, which enters the Catawba river on its South side. The -waters of the two streams flowing in nearly opposite directions cause the water of the creek to back up stream and overflow the lowlands.
The plaintiff, in aid of its allegation of irreparable injury, says that it holds said land “with a view to using the same for a park to be attached to hotel site on said land, and it derives its chief value from its picturesque surroundings — and that it will be disfigured and rendered much less valuable.” The court below required the defendant to file a good bond in the sum of $1,000 to meet any damage ascertained at the final hearing and discharged and vacated the preliminary injunction. Since the case was filed in this court an affidavit has been filed stating that the canal has been finished and that the waters of the creek are now running through the canal. If this be so, any further action by this court would be a vain proceeding. In order to dispose of the present contention however we will consider that the canal is not finished. Then, will the act complained of result in an irreparable injury? "What kind of trespass is remedied by compensation and what kind by an injunction to prevent it has frequently been decided in this Court. The rule is that if the threatened injury can be compensated in damages, then injunc-tive relief will not be given, but the parties will be left to work out their grievances in a court of law. If the prospective injury is such as cannot Jje atoned for in damages,,
There is no allegation here of insolvency, and the real mouth of the creek will be located at the trial in the appropriate way. Gause v. Perkins, 3 Jones Eq. 177; Frink v. Stewart, 94 N. C., 484.
No error.